2023 ONSC 3829

COURT FILE NO.: CV-13-00040497

DATE: 2023/07/07

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

Anthony Rizzuto

Nadia Rizzuto

Anthony Rizzuto Sr.

Plaintiffs

- and -

Hamilton Wentworth Catholic District School Board, Brenda Hamilton, and James Vandenbosch

James Greve and Cindy Leung

Defendants

HEARD: March 20-24, 27-31, April 3-6, 11-14 2023

CORRECTED DECISION: October 20, 2023 - Placement of citation corrected in para. 332. No change to content.

THE HONOURABLE JUSTICE M. BORDIN

REASONS FOR DECISION

OVERVIEW

[1] The plaintiffs seek damages in negligence against the defendants for a school yard assault on Anthony Rizzuto (“Anthony”) when he was a 10-year-old boy.

[2] The Hamilton Wentworth Catholic District School Board (the “Board”), Brenda Hamilton, and James Vandenbosch deny they were negligent and dispute the plaintiffs’ damages.

[3] At the commencement of trial, there were two additional individual defendants, Kyle McKinven (“Kyle”) and Justin Almonte (“Justin”), whom the plaintiffs allege assaulted Anthony. Midway through the first week of trial, the plaintiffs settled with Kyle and Justin. In exchange for giving evidence pursuant to an agreed three-paragraph statement without cross-examination, Kyle and Justin were let out of the action. The parties agreed that the defendants could refer to the transcripts of the examination for discovery of Kyle and Justin as though they were sworn statements.

[4] For the reasons that follow, I find the defendants fell below the standard of care, but that the plaintiffs have not established cause in fact.

[5] In the first part of these reasons, I address reliability and credibility of the witnesses and the hearsay issues. Then I set out the evidence, facts, law, analysis and conclusions on liability. In the final part of these reasons, I review the evidence and assess damages.

BACKGROUND

The Parties

[6] In the fall of 2009, Anthony was a grade 5 student at Holy Name of Mary elementary school (“Holy Name” or the “school”). Anthony is now 24.

[7] Nadia Rizzuto is Anthony’s mother. Anthony Rizzuto Sr. is Anthony’s father. Anthony has a younger brother who is not a party. Neither Mr. Rizzuto nor Anthony’s brother testified.

[8] Ms. Hamilton was the principal at Holy Name in 2009-2010. James Vandenbosch was the Vice-Principal. Their offices were side-by-side.

[9] Justin was in the same grade as Anthony in 2009. They were not friends but would be in each other’s presence at school recesses. Justin was bigger and taller than Anthony.

[10] Kyle was also in grade 5 in 2009. Kyle and Anthony did not like each other. They had occasional disagreements that ended in fisticuffs. Kyle was taller than Anthony.

The alleged incidents

[11] The plaintiffs allege that Anthony suffered four assaults in the fall of 2009 (the “incidents”) and that the incidents were reported to the school. The four alleged incidents can be briefly described as follows:

i. On September 9, 2009, Anthony was kicked in the head by Justin and Kyle (sometimes referred to as the first kick to the head incident);

ii. On September 18, 2009, Anthony was pulled to the ground and Justin stomped on his left knee causing an injury to his knee (sometimes referred to as the knee incident);

iii. On October 8, 2009, Justin and Kyle scratched Anthony’s face (sometimes referred to as the scratching incident);

iv. On November 23, 2009, Justin and Kyle held Anthony on the ground and repeatedly kicked him in the head.

[12] All four incidents were connected to football games at school.

Football at School

[13] Anthony was part of a group of boys who regularly played football during recess and lunch. The games involved a large group of children. There was rough play. The evidence called by all parties is that the boys knew they were only allowed to play touch football at school and not tackle or contact football.

[14] Kyle’s discovery evidence tendered was that the boys played touch football which usually escalated into tackle football. The boys would wait until the supervisor left to play tackle football or the game would be moved to avoid the supervisor.

[15] Justin’s discovery evidence tendered was that the boys played tackle football when the supervisors were not in sight. Tackle football meant that they would take the player with the ball to the ground to end the play. All players understood that. They kept a lookout for the teachers. When the supervisors were around, they played touch football. They played football every day.

[16] Anthony admitted that the supervisors made it very clear that contact football was not allowed. Yet they would play contact football when the supervisors were out of sight and would play touch football when the supervisors were back in sight. Anthony agreed the boys would move the game to avoid the supervisors.

[17] Anthony was not sure if the supervisors saw the rough play. He said most of the time they did not. He recalls one time where a supervisor took away their football. He agreed that sometimes the supervisors would tell them to stop, but when the supervisors went away, the boys would continue their game.

[18] Anthony agreed that he did not avoid football in October and November 2009. He played every day if he was physically able to play. After the fourth incident on November 23, 2009, Anthony would no longer play football with Justin and Kyle.

POSITION OF THE PARTIES

[19] The plaintiffs’ theory of liability is that the incidents were reported to the school and that if Mr. Vandenbosch or Ms. Hamilton had appropriately dealt with the earlier incidents and verbal harassment, and disciplined Justin and Kyle, the November 23, 2009, assault would never have occurred.

[20] The plaintiffs say that the essence of liability in this case revolves around two questions:

a. Was the bullying behavior repeated over time such that the school could have intervened with consequences applied to the bully/bullies on an ever-increasing basis to protect Anthony from further injury? and

b. Did the injuries and resulting medical treatment of Anthony come within s. 310(1)(3) of the Education Act, R.S.O. 1990, c. E.2 such that that Justin and Kyle should have been suspended or expelled to prevent further injuries to Anthony?

[21] The plaintiffs assert that the November 23, 2009, assault caused Anthony’s tinnitus and that but for the tinnitus Anthony would have become a medical doctor or a medical physicist. He has not and has suffered substantial loss of income as a result.

[22] The plaintiffs concede that the events which occurred after November 23, 2009, are not relevant to whether the defendants breached their duty of care on or before November 23, 2009. Rather, they say that it goes to the credibility and reliability of the defendants.

[23] The plaintiffs also concede that their claim is framed in negligence, not as a breach of fiduciary duty.

[24] The defendants’ position is that the only incidents reported to the school before November 23, 2009, were generic concerns expressed to the school on September 17, 2009, and the September 18, 2009, knee incident. The defendants assert that there was no bullying and that the plaintiffs have not established that the defendants fell below the standard of care. They assert that liability rests with Justin and Kyle, and that Anthony was contributorily negligent.

[25] The defendants say that the plaintiffs have failed to produce credible evidence that but for Anthony’s incident-related injuries he would have succeeded in gaining admission to medical school and becoming a medical doctor, or a medical physicist.

RELIABILITY AND CREDIBILITY

Issues with the Evidence

[26] For the most part, the parties do not agree on what occurred in the fall of 2009 and what was reported to the school and its administrators.

[27] There are reliability and hearsay issues with the evidence, in part because the events occurred over 13 years ago. Some witnesses were not available to testify at the time of trial. There are issues with the reliability of documents relied on by some witnesses and neither party would concede that documents could be admitted for the truth of their contents.

[28] Ms. Rizzuto testified first for the plaintiffs. Anthony testified after her. Ms. Rizzuto’s testimony of what transpired at the school was relayed to her by Anthony. The plaintiffs seek to tender this hearsay evidence for the truth of its contents. I deal first with the reliability of the evidence of the witnesses, and then address the admissibility of Ms. Rizzuto’s hearsay evidence.

Credibility and Reliability of Ms. Rizzuto’s evidence

[29] As I will explain, I do not find Ms. Rizzuto’s evidence reliable. There were many issues with her evidence, some of which are discussed below, and others are found throughout these reasons.

[30] Ms. Rizzuto’s evidence contains numerous internal and external inconsistencies. Some of her evidence was contradicted by Anthony and the police officer. She was often non-responsive to questions and often gave unnecessary explanations for questions which required a yes or no answer. Some of Ms. Rizzuto’s evidence was not believable.

[31] Ms. Rizzuto relied heavily on a document titled “Important Dates and Times” (“IDT”) of which there three versions referred to at trial. She acknowledged using the IDT to prepare for discoveries and trial. In recounting the events of 13 years ago, she would often be directed to the IDT to recall events.

[32] Ms. Rizzuto prepared the first version of the IDT in early January 2010 (the “Original IDT”). The Original IDT ends with an entry dated “December 18, 2009” and then a generic entry for the months of October through November 2009.

[33] Ms. Rizzuto says she prepared the Original IDT from notations on sticky notes, cigarette cartons, and receipts which she kept in an envelope at the back of a calendar. She also used calendar entries and text messages to herself. Some of it was recreated from memory. Some of the language in the document was her own based upon what Anthony told her. Some of what Anthony told her is not recorded. She says she only recorded what seemed important.

[34] Ms. Rizzuto gave a copy of the Original IDT to an officer involved in the matter, Cst. Mitchell, and mailed a copy to Mary Cipolla, a director of the Board.

[35] In chief Ms. Rizzuto testified that she prepared a second version of the IDT in 2012 when her then counsel noted that he thought there were some inaccuracies with the dates in the Original IDT (the “Final IDT”). Ms. Rizzuto says she lost the original notes and calendar entries around that time. The last entry in the Final IDT is dated March 1, 2012. Ms. Rizzuto says this IDT is accurate as to dates.

[36] It came out during Ms. Rizzuto’s cross-examination that there was in fact a third version of the IDT. Ms. Rizzuto called it her working version (the “Working IDT”). She said the Working IDT was a version on her computer which she amended if revelations were made to her by Anthony or were made during conversations in which Anthony participated. Ms. Rizzuto does not know when the revisions were made but agreed they were made over a long period of time.

[37] In cross-examination, Ms. Rizzuto admitted that she had not in fact prepared the Final IDT until after the statement of claim was issued on April 5, 2013, contradicting her earlier evidence. This is more than a year after the final entry in the Final IDT. Ms. Rizzuto reviewed the statement of claim before it was issued. The statement of claim contained errors regarding the dates and timelines which prompted the preparation of the Final IDT. Ms. Rizzuto eventually conceded that she did not give her lawyer the Final IDT to prepare the statement of claim. She acknowledged it was likely that she gave her lawyer the Original IDT. Ms. Rizzuto asserts the confusion arose because she had multiple versions of the IDT on her desktop – up to three at one time.

[38] Anthony testified that Ms. Rizzuto did not ask him questions about the events recorded in the IDT or consult with him in preparing the various versions of the IDT.

[39] There are differences between the various versions of the IDT, some important, some less so. Ms. Rizzuto explained the differences as arising because some of the notes did not have dates on them and some had partial dates which led to errors. She did not notice the errors until her first lawyer raised them. Some of the differences include:

a. The Original IDT and the Working IDT describe the knee incident as occurring on September 9, 2009. In the Final IDT this incident is moved to September 18, 2009.

b. The Original IDT and the Working IDT describe the first kick to the head incident as occurring on October 8, 2009. In the Final IDT this incident is moved to September 9, 2009.

c. The Original IDT and the Working IDT do not have an entry on September 10, 2009. The Final IDT has an entry on September 10 that Ms. Rizzuto reported the September 9 incident to the school.

d. The Original IDT and the Working IDT record the scratching incident as occurring on September 23, 2009. It was moved to October 8, 2009, in the Final IDT.

e. All versions of the IDT contain essentially the same entry for October 9, 2009, which is when Ms. Rizzuto says she reported the events of October 8, 2009, to Mr. Vandenbosch. At one point, Ms. Rizzuto acknowledged this entry should likely be moved to an earlier date, since the incident reported the previous day (the first kick to the head incident) had been initially recorded on the wrong date. She later said the date of the October 9 entry should not be changed because the description of the events of October 9, 2009 were always correct – even if the events of the previous day were recorded on the wrong date.

f. The following are some of the changes made to the September 23, 2009, entry between the Original IDT and the Working IDT:

i. The Working IDT says that Anthony was “scratched brutally in the face” while the Original IDT says he was “scratched in the face”. Ms. Rizzuto says she took the word “brutally” out because the original version was created for the purpose of Cst. Mitchell – a nonsensical explanation since the original version is what came first and was provided to Cst. Mitchell.

ii. The Working IDT adds the word “laughingly” to the description of how Mr. Vandenbosch responded to Anthony. In his evidence, Anthony said that Mr. Vandenbosch was not laughing that he can recall.

g. The following changes were made to the September 24, 2009, entry between the Original IDT and the Working IDT:

i. The Working IDT replaces the words “quickly go in the office once again with Mr. Vandenbosch to discuss …” in the Original IDT with the words “quickly ask to speak to Mrs. Hamilton.” Ms. Rizzuto suggests she made this change perhaps because she checked her notes, but she was not sure. It may have been because some clarity came to her and she added it.

ii. The Working IDT adds the words “as a defensive tactic” to the end of “to go away to play on their own.”

h. At one point, Ms. Rizzuto conceded it was possible that the events described on September 24, 2009, about a conversation with Mr. Vandenbosch should be moved to earlier in September.

i. The October 2009 entry in the Original IDT read, “Anthony, with his large group of friends, which included Seth Carter, Lucas [D.], Andrew [C.], Robbie [P.] and Anthony [B.] continually …” was changed by adding words and removing the names of the friends so that the Working IDT read, “Anthony, with his large of group of boys, whom all had excellent rapport and relationships with teachers and students, continually …”. Ms. Rizzuto said the added language was an assumption she made and did not come from Anthony.

j. The November 23, 2009, entry in the Original IDT states that the ER doctor said Anthony had “sustained a concussion.” The November 23, 2009, entry in the Working IDT states the ER doctor said Anthony had “sustained a severe concussion.” Ms. Rizzuto said that she later “recollected” that perhaps the ER doctor did not use that word, and she wanted to keep it as accurate as possible. Ms. Rizzuto also said she maybe added severe to the Working IDT because maybe it was when she looked at her collection of notes.

[40] In response to questions about whether she was confusing two discussions with Mr. Vandenbosch in what is recorded in her Working IDT and Final IDT, Ms. Rizzuto testified that she would not have done so because the Working IDT was “filled, as I said, as it happened. It was a working copy that I brought home and was inputting immediately.” This is simply not possible given 1) Ms. Rizzuto’s evidence that she did not begin to prepare an IDT until early January 2010, a few weeks after the issues being discussed and months after some of the events, and 2) that the Original IDT was prepared first, the Working IDT was prepared after the Original IDT, and the Final IDT was prepared sometime after April 2013.

[41] Ms. Rizzuto was questioned about why the second December 18, 2009, entry in the Working IDT is not in the Original IDT. This additional entry is a notation of an alleged admission by Ms. Cipolla that Ms. Hamilton did a terrible job in the investigation. Ms. Rizzuto testified that this was the reason she proceeded with the police investigation. Yet she did not include it in her Original IDT provided to Cst. Mitchell that she prepared just a few weeks later. Ms. Rizzuto said she may not have seen it as important at the time.

[42] At one point during her examination in-chief, Ms. Rizzuto was asked by her counsel to explain how Anthony’s first year of university and grades impacted him. In response she asked to excuse her 24-year-old, university educated son. Plaintiff counsel acceded to Ms. Rizzuto’s request that he should leave. The evidence that followed could not have been shocking, surprising, nor unexpected to Anthony if he had remained in attendance. Ms. Rizzuto explained that in Anthony’s first year of university the family had difficulty getting Anthony back to university when he came home for the weekend. She said Anthony was under an enormous amount of anxiety and stress, was having difficulty coping, and lacked social opportunities. Anthony later gave similar evidence. It was not until Ms. Rizzuto’s cross-examination that plaintiff counsel asked Ms. Rizzuto if it was okay for Anthony to return the courtroom. She agreed he could return.

[43] In my view, Ms. Rizzuto’s request to exclude her son from the courtroom contradicted her testimony that she was not controlling or directing or the one telling the school or the doctors what happened.

[44] Ms. Rizzuto described their family relationship during Anthony’s last three years of university as wonderful and very close. And yet, she testified that they have not discussed the issues pertaining to the litigation in the home for the last 13 years.

[45] When asked whether he agreed with Ms. Rizzuto’s testimony that they did not discuss the incidents at home, Anthony testified that he had to talk to his parents about the incidents because he had to talk to someone about them.

[46] When asked if she thought Anthony suffered from ear issues more frequently than other children, Ms. Rizzuto denied talking to other mothers about these issues. On the other hand, she admitted that she shared the IDT with other parents.

[47] Ms. Rizzuto’s recollection of significant events in Anthony’s life was not consistent. She could not recall some of Anthony’s visits to the hospital for various injuries (which were not the incidents) or even approximately when he had the last of several surgeries to insert or remove tubes from his ears. In cross-examination, Ms. Rizzuto:

a. Did not recall that Anthony was taken to the hospital on June 8, 2009, for a left wrist injury from hockey;

b. Did not recall that he had a cast in the summer of 2009;

c. Did not recall that Anthony was taken to the ER on July 6, 2009, due his left ear being plugged for four days;

d. Had no recollection of an ankle injury suffered by Anthony reported in the medical records.

Reliability of Anthony’s evidence

[48] I do not find Anthony’s evidence to be reliable with respect to the incidents. The following are some examples of issues that undermine the reliability of Anthony’s evidence.

[49] Anthony agreed his memory was refreshed by listening to his mother’s testimony.

[50] Anthony was examined for discovery on April 6, 2016. It was a week before his 17th birthday. At various times, Anthony agreed that his discovery answers were different than his evidence at trial about his recollection of the incidents. He acknowledged his answers at discovery were probably more accurate because they were closer to the date of the events.

[51] Anthony also said that at discoveries he was under pressure and anxious. He just wanted to get through discoveries as quickly as possible. He thought that if at discoveries he said he could not recall the memories well or did not talk about them, he would not be asked as many questions. I will refer to this as Anthony’s “discovery evidence explanation.” Although he read his discovery in preparation for trial, there were no corrections to the answers submitted at trial.

[52] Anthony testified at trial that he recalled the incidents because they were traumatic. He has memories of the incidents but not all the details surrounding the events. Anthony agreed that at discoveries he did not say he recalled the incidents because they were traumatic. His evidence at discovery was that his memory of the incidents was medium to low. He explains that difference by relying on his discovery evidence explanation. However, Anthony told Mr. Cohen, a vocational expert who testified for the plaintiffs, that his recollection had diminished and that his recall of the incidents was unclear.

[53] Anthony testified at trial that the November 23, 2009, incident and the knee incident stand out most to him – but only slightly more than the other incidents. However, he agreed that at discoveries he said he could recall the other incidents more than the November 23, 2009, incident. He said that he thought his discovery answer would speed up discoveries.

[54] Anthony acknowledged that at discoveries he said that he did not have an independent recollection of being held down and Justin kicking him. He explained his answer by saying that he thought it would speed things up at discovery if he did not recall certain memories.

[55] When it was put to Anthony that at discovery he said that it was not until after the November 23 incident that he felt any real concern about Justin and Kyle, Anthony responded that he missed school to avoid the situation. However, his attendance record does not support this. Anthony was then cross-examined on his discovery transcript including the following exchange:

836. Q. Right. And the first time that you were concerned that something bad was going to happen would that have been after the November thing?

A. Yeah.

937. Q. I'm not trying to put words in your mouth. I'm just trying to understand because I wasn't there.

A. Yes, of course.

838. Q. Is it the case that the first time that you felt concerned about your ability to handle it, getting hurt and all that kind of stuff, was after November when this bigger incident occurred?

A. Yes. That big one was like really the eye opener for me.

[56] Anthony agreed he gave those answers but said that he does not recall saying those words. He suggested he was misinterpreted. He says he was not scared of being physically injured. Although he was injured before, it was not significant enough to stop being involved in football.

[57] Anthony was confronted with his discovery evidence that it was typical for his mother to speak to the doctors when he was in grade 5 through 7. Anthony said this evidence was misinterpreted.

[58] Anthony did not recall any details of discussions with hospital staff when being seen for the injury to his knee but said that the note in the hospital records that he had been playing full contact football indicated that his words had been misinterpreted because he did not recall saying that.

[59] While Anthony says he recalled the details of what happened on a playground 13 years ago, he does not recall the details of a fall while skiing in 2016-17 that ended his attempt to return to skiing.

[60] Anthony’s evidence was at times internally inconsistent, suggesting his memories may not be memories of the events but may have been influenced by his mother’s version of events or by reading the IDT.

Reliability of Seth Carter’s evidence

[61] Seth Carter testified. His evidence contradicted Anthony’s evidence on several important points. Both cannot be accurate or reliable.

[62] Mr. Carter went to school with Anthony and described himself as Anthony’s best friend in grade 5. They were close until around grade 12 when they went their separate ways.

[63] Mr. Carter’s account of what happened to Anthony on September 18, 2009, differed from Anthony’s account in significant aspects. For example, Anthony said the injury happened while he was on the field playing football and was pulled to the ground by Justin and Justin stomped on his knee. Seth said they were not playing football and were on the blacktop.

[64] Another significant conflict between Anthony and Mr. Carter’s evidence is that Anthony testified that he did not avoid football in October and November 2009 and played every day if he was physically able to play. Mr. Carter testified that Anthony was no longer allowed to play football after his knee was injured. As a result, he would spend time with Anthony at recess because he did not want him to be alone.

[65] Mr. Carter had no recollection of the other alleged September incident where Anthony said he was kicked in the head during football. He has no recollection of the incident on October 8, 2009, where Anthony says that he was scratched in the face and Anthony and a group of friends reported it to Mr. Vandenbosch on the playground.

[66] Mr. Carter’s evidence that he took Anthony to the office after the November 23, 2009 incident is at odds with Anthony’s evidence. It is also inconsistent with contemporaneous records.

[67] Some of Mr. Carter’s evidence did not accord with the evidence of other witnesses. Mr. Carter said he recounted to Ms. Rizzuto what happened in detail on November 23, 2009, and again once or twice over the next week. Ms. Rizzuto gave no such evidence.

[68] Mr. Carter’s evidence about tackle football is somewhat at odds with the evidence of Anthony, Justin and Kyle. Mr. Carter’s evidence was that playing tackle football was the quickest way of losing the football to playground supervisors and that it was difficult to play tackle football. This evidence contradicts Mr. Carter’s own evidence that there was a lack of supervision on the playground.

[69] Despite having made no notes or records of what occurred and having only recounted the incident in the week after it occurred, and not since, Mr. Carter gave an incredibly detailed account of the November 23 incident which strained credulity, particularly considering the inconsistencies of his evidence with other evidence at trial.

[70] I find that Mr. Carter’s evidence is not reliable as to the details of the incidents he recalled.

Reliability of Ms. Hamilton’s Evidence

[71] Ms. Hamilton testified that she prepared a seven-page document entitled “Documentation of Communication Logs for the Rizzuto Family” (“Communication Log”). The Communication Log states that it was prepared by Ms. Hamilton in June 2013. Ms. Hamilton relied heavily on the Communication Log in giving her evidence. Ms. Hamilton used coiled notebooks to log daily events and occurrences when she was an administrator (“logbooks”). She testified that she reviewed the logbooks page by page and wherever there was mention of a member of the Rizzuto family she entered it in the Communication Log.

[72] The fact that the December 1, 2009, entry in the Communications Log contains a reference to a phone call which took place on December 7, 2007, does not undermine the reliability of the document. The reference to a follow-up phone call to the McKinven family immediately follows an entry about a December 1, 2009, unanswered phone call to the McKinven family. There is also a separate December 7, 2009, entry describing a phone call with Ms. McKinven.

[73] Further, the fact that the Communication Log discloses no records between September 3, 2009, and November 3, 2009, is indicative of the fact that Ms. Hamilton had no direct communications with anyone regarding the Rizzuto family during that time, not that the Communication Log is inaccurate.

[74] The logbooks were not disclosed in the defendants’ affidavit of documents. The Communication Log was disclosed and produced in Ms. Hamilton’s affidavit of documents on July 16, 2014. Ms. Hamilton was examined for discovery on April 6, 2016. The logbooks were discussed at some length during her discovery. The plaintiffs never pursued the production of the logbooks.

[75] A superintendent of the Board, Ms. Kovach, testified that under the Municipal Freedom of Information and Protection of Privacy Act, R.S.O. 1990, c. M.56 (“MFIPPA”), there are rules that govern confidentiality of school records and that information recorded about an identifiable individual held by school boards is subject to MFIPPA and must be protected and is confidential except under the strictest conditions. The superintendent said that taking the log notes of the principal or vice-principal off the school property falls below the standard required.

[76] None of the Board witnesses (including two superintendents) testified that there was any policy that required administrators to preserve the logbooks or not remove them from the school. Three of the Board witnesses (including one former superintendent) testified that the logbooks were the personal records of the principals and vice-principals and that there was no repository for the storage of logbooks. Ms. Kovach did not testify that the logbooks belonged to the school and were school records.

[77] Two of the Board witnesses (including one former superintendent) shredded their own logbooks. Mr. Vandenbosch’s logbooks were destroyed in a flood before the commencement of this action. Ms. Hamilton destroyed her logbooks in the summer of 2022 when undertaking home renovations. There is no evidence that the logbooks were disclosed to anyone in breach of any confidentiality requirements.

[78] Ms. Hamilton also relied on a January 18, 2010, letter she sent to Ms. Cipolla with an attached multi-page email (the “2010 Email”). The 2010 Email was prepared by Ms. Hamilton and Mr. Vandenbosch to respond to Ms. Rizzuto’s IDT. Given Ms. Rizzuto’s evidence, it must have been in response to the Original IDT. As reviewed above, the Original IDT contained errors – there were no entries on some dates and some of the alleged events appeared on different dates than in the Final IDT. Ms. Rizzuto received a copy of the 2010 Email at the time.

[79] Mr. Vandenbosch testified that he and Ms. Hamilton reviewed their logbooks and recollection to respond to the IDT. Ms. Hamilton also spoke to teachers and the secretary. Mr. Vandenbosch reviewed the 2010 Email when it was completed and felt it was accurate.

[80] In my view, the removal and destruction of the logbooks does not affect the reliability of the Communications Log or the 2010 Email and the evidence of Ms. Hamilton and Mr. Vandenbosch. In the circumstances before me, which are set out in more detail in my mid-trial ruling on the plaintiffs’ motion to strike, no adverse inference is drawn because the logbooks were not produced and were destroyed before trial.

[81] The events in the 2010 Email between September 4 and November 23, 2009, are not based on information from Ms. Hamilton, but from others and from Mr. Vandenbosch’s logbook. Ms. Hamilton’s evidence of what transpired between September 4 and November 23, 2009, inclusive is hearsay as she was not directly involved in the events during this time. As such, it is not reliable, is not admitted for the truth of its contents, and is of very limited weight and assistance as to what occurred with respect to the incidents.

[82] Ms. Hamilton became directly involved after the November 23, 2009, incident and has some contemporary emails setting out subsequent events. Where she did not record events, I did not find her evidence reliable.

Credibility and Reliability of James Vandenbosch

[83] I find Mr. Vandenbosch to be a reliable and credible witness. Like all the other party witnesses, he had reviewed the documents, but he had a clear and consistent recollection. He gave his evidence in a forthright manner, typically without reviewing documents. Unlike some of the party witnesses, he readily acknowledged when there were events he did not recall. He gave answers which could potentially undermine his position. Mr. Vandenbosch and his evidence were essentially unshaken in cross-examination.

[84] For the reasons outlined above, it is my view that the inadvertent destruction of his logbooks does not affect Mr. Vandenbosch’s credibility or reliability.

HEARSAY

[85] There was a significant amount of hearsay evidence tendered through Ms. Rizzuto of what Anthony told her about the incidents. The plaintiffs tender the evidence for the truth of its contents. The plaintiffs rely on the principled approach to admissibility. They argue that the parents of a child must listen to what is reported by the child, determine if it is bullying and if so, then have an obligation to report it to the school. The plaintiffs argue that this obligation should not be obscured by the imposition of unduly rigorous rules of hearsay evidence. The parties agreed I should determine this issue at the end of the trial.

[86] Hearsay evidence is presumptively inadmissible and the party tendering the hearsay evidence has the onus of establishing its admissibility on a balance of probabilities: Khelawon, 2006 SCC 57, para. 47; R. v. MacKinnon, 2022 ONCA 811, para. 52.

[87] In my analysis, I am guided by the principles in Khelawon, , R. v. Wood, 2022 ONCA 87, and MacKinnon, and the framework set out in MacKinnon at para. 62 for determining the admissibility of hearsay evidence.

[88] The hearsay evidence from Ms. Rizzuto was not necessary. Anthony testified and was cross-examined. His evidence was that he recalled the incidents.

[89] The potential harm of admitting the hearsay evidence is both as to its sincerity or truthfulness, and the accuracy of the evidence relayed by Ms. Rizzuto.

[90] In my view, the plaintiffs have not established procedural reliability. The statements by Anthony to his mother were not made under oath and there was no contemporaneous cross-examination. The statements were made to Ms. Rizzuto, apparently written on the equivalent of scraps of paper and some months or years later recorded in a document which has been amended and is admitted to contain errors. The statements were made to a parent, which could potentially provide some reliability on the basis that a 10-year-old boy understands the importance of telling his parents the truth about what occurred. However, human nature and experience reveals that children do not necessarily tell their parents the truth. They may have their own motivations for deviating from the truth such as portraying themselves in a better light or downplaying any wrongdoing on their part. For example, there was some evidence that Anthony may have been involved in fights with Kyle as part of the November 23, 2009, incident.

[91] The plaintiffs may also meet their onus by establishing substantive reliability. In my view the circumstances surrounding the statements do not provide sufficient circumstantial or evidentiary guarantees of trustworthiness. Some of the above comments with respect to procedural reliability are equally applicable to trustworthiness. There are minimal, if any, circumstantial guarantees of reliability. The statements were made for the most part after Anthony returned home from school, not immediately. Anthony may well have had reasons to give a certain version of events to his mother. Some of the statements contain double hearsay. As noted, there are significant concerns about the reliability of Ms. Rizzuto’s evidence. I am not satisfied that the statements made by Anthony to his mother as recounted by her are “so reliable that contemporaneous cross-examination of the declarant would add little if anything to the process”: MacKinnon, at para. 37.

[92] I am concerned that a principal purpose for tendering this evidence is as a prior consistent statement by Anthony to buttress his evidence as to what occurred at the school. Prior consistent statements are presumptively inadmissible because they lack probative value: see R. v. Stirling, 2008 SCC 10, [2008] 1 S.C.R. 272, paras. 5-7.

[93] In my view, the hearsay evidence given by Ms. Rizzuto about what Anthony told her should not and will not be admitted for the truth of its contents. Even if it were, given the significant concerns regarding its reliability, it would be given very little to no weight.

FACTS

Anthony’s school attendance between September and November 2009

[94] Ms. Rizzuto testified that Anthony missed a lot of school over the years for many reasons. Sometimes it was due to anxiety, sometimes illness, sometimes she or his grandmother would let him stay home if he wanted to. His absenteeism predated the events in the fall of 2009. She agreed that Anthony did not have a stellar attendance record. She would often call and give the school a false reason for Anthony’s absence.

[95] Anthony’s attendance record discloses the following absences in September through November 2009:

a. September 21 (full day) for illness;

b. October 7 (afternoon) for a parent requested absence;

c. October 14, 20 and 28 (full days) and October 29 (afternoon) for reported illnesses of an upper respiratory infection, fever and stomachache;

d. November 2 and 16 (excused just before 2 p.m.) for appointments;

e. November 5 and 12 (full days) for a sore throat and a rash on his neck and chest and fever;

f. November 24 (full day) for injury (concussion);

g. November 25 (part of the morning and the afternoon) for a headache and CT scan; and

h. November 30 (afternoon) for illness (ears hurt).

The September 9, 2009 Incident

[96] The Original IDT and Working IDT record that the knee incident occurred on September 9, 2009. The Final IDT and Ms. Rizzuto’s evidence describe a different event on this day.

[97] Ms. Rizzuto testified that on September 9, 2009, Anthony came home on the bus. He did not look well. She asked him what had happened. Ms. Rizzuto felt his head and could feel a large bump and said that his pupils were uneven. She asked Anthony to lie down on the couch. Ms. Rizzuto called her neighbour, Dr. James Leone, an orthopedic surgeon, to come over and look at Anthony. Based on that conversation, she followed the standard protocol for concussions. Although the concussion and injuries were a significant event, she did not take Anthony to the hospital and did not feel it necessary to report it to the school that day.

[98] Anthony testified that they were on the field playing football. Kyle pulled him to the ground and Justin kicked him in the head. He did not recall the date this occurred but said it was early in the school year. He does not recall much else after the incident and did not report the incident to the office. He took the bus home and told his parents that he had been pulled to the ground and kicked in the head. He recalls a bump on his head. He thinks it was the side of his head.

[99] Anthony remembered Dr. Leone, “rubbing” his head. Anthony said the incident was not a result of playing football because being kicked in the head is not part of football.

[100] Dr. Leone testified. He had written a letter on December 19, 2009. He referred to the letter and said he had some limited recollection of events. He recalled an incident in September 2009 in which Ms. Rizzuto asked him to evaluate Anthony. Anthony was on the couch in the Rizzuto home. Anthony described being kicked in the head. Dr. Leone examined Anthony and noted superficial contusions on Anthony’s scalp. He told Ms. Rizzuto to watch for headaches, nausea, vomiting, balance issues and fatigue.

[101] I find that sometime in September Anthony was taken down during a football game and kicked in the head. Anthony was seen by Dr. Leone but was not taken to the hospital. The incident was not reported to the school that day.

Notice of the September 9, 2009 Incident

[102] The Original IDT and the Working IDT do not have an entry on September 10, 2009. The Final IDT has an entry on September 10, 2009, that Ms. Rizzuto reported the September 9 incident to the school and that since it was the first incident and the beginning of school, she did not discuss whether the incident was intentional or accidental.

[103] Ms. Rizzuto testified that the next day, September 10, 2009, she drove Anthony to school and spoke with Mr. Vandenbosch. Ms. Rizzuto says she told him what Anthony had told her and that Anthony had a concussion. She says Mr. Vandenbosch told her he would keep an eye on things.

[104] Anthony gave no evidence about his mother reporting the incident to the school. In cross-examination, he recalled talking to Mr. Vandenbosch on a couple of occasions but acknowledged that it was his mother who was communicating with the school with respect to requesting any discipline for the conduct of Kyle and Justin.

[105] Mr. Vandenbosch testified his records did not disclose an incident on September 9 or 10, 2009. He had no recollection of any incident at that time. If an incident had been reported to him about Anthony being kicked in the head, he would have considered it significant and he would have made a note of it in his logbook and would have acted on it and investigated further.

[106] Ms. Hamilton testified that nothing was brought to her attention about an incident that occurred at the beginning of the school year. Ms. Hamilton expected that if there had been an incident reported to Mr. Vandenbosch as described by Ms. Rizzuto it would have been documented and reported to her.

[107] Although Ms. Rizzuto said Anthony was reporting concerning events at school almost every night between September 9 and 16 regarding the conduct of Justin and Kyle, she did not report it to the school because Anthony did not sustain any injuries.

[108] Ms. Rizzuto did not consider the incident significant enough to take Anthony to the hospital. The issues with the IDT cast significant doubt on the incident having been reported at the time. In their submissions at paragraph 96, the plaintiffs say that Ms. Rizzuto “did not over report it as this was the first incident”. I accept the evidence of Mr. Vandenbosch that if an incident had been reported as described by Ms. Rizzuto, he would have recorded it and made inquiries. I find that the plaintiffs have not established on a balance of probabilities that the first kick to the head incident was reported to the school. Even if there had been a report, the evidence suggests that it was reported in a manner that did not raise any concern on the part of the school which would require action or investigation.

Concerns expressed on September 17, 2009

[109] On September 17, 2009, Ms. Rizzuto said she went to the school to report to Mr. Vandenbosch that Anthony was saying that things were getting aggressive again at school and Anthony did not want to play with Justin and Kyle. She did not recall what if any details of these allegations of aggression were communicated to Mr. Vandenbosch, nor what details she knew, or where the conversation took place. In response to questions about why she did not pursue details of these allegations she said she did not think her son would give her the details on what happened to other boys. Ms. Rizzuto testified that Mr. Vandenbosch said he would talk to the boys and ask them not to play with Anthony and his friends and keep their distance.

[110] Mr. Vandenbosch testified that the summary in the 2010 Email about Ms. Rizzuto’s visit to the school on September 17, 2009, is from his logbook. He spoke to Ms. Rizzuto in his office. She complained that the football was getting too rough. He called Anthony in and spoke to him. Anthony said there was tackling and pushing in the football games. Mr. Vandenbosch told Ms. Rizzuto that he would be outside and would keep an eye on the situation to ensure the game was safe. He told Anthony that he could talk to him or to a supervisor and to make sure he used his words in dealing with issues. Anthony and Ms. Rizzuto did not discuss any specific students Anthony was concerned about or any specific actions. He was not told that students were suffering injuries. If he had been told that, he would have recorded it in his notebook and taken action.

[111] I accept the evidence of Mr. Vandenbosch as to what transpired on September 17, 2009, and that no injuries were reported to him on September 17, 2009.

The September 18, 2009 Incident

[112] Without specific reference to a day, Anthony described an incident in which his knee was injured. He said he was on the field playing football and was pushed to the ground by Justin and Justin stomped on his knee.

[113] Anthony recalls going into the school. He had ice on his knee. His knee was swollen, and he could not put weight on it. The secretary called his mother. He does not think anyone else from the school attended. He told both the secretary and his mother that he was brought to the ground and Justin stomped on his knee. He may have told the secretary it was during football.

[114] Anthony says he saw a document created at that time – “something in pencil” and that he does not think his mother read it.

[115] Ms. Rizzuto testified that on September 18, 2009, she received a call from Ms. Hurley, the school secretary who told her that her son was in the office with ice on his knee. Ms. Hamilton’s review of records indicated that Ms. Hurley was not in attendance that day. Rather, Ms. Floris, a supply secretary, was in attendance.

[116] At the office, Ms. Rizzuto noted that Anthony’s knee was swollen. She says Anthony reported that the incident involved Kyle and Justin again. However, he did not provide details.

[117] Ms. Rizzuto says she asked for Mr. Vandenbosch to attend. He attended but did not question Anthony or her. She told Mr. Vandenbosch she had to take her son to the hospital, but she was insistent that she would not leave until she saw something written down about what happened. Ms. Rizzuto says Mr. Vandenbosch told the secretary to fill out an incident report and he would sign it. She says that was done. She saw a long slender piece of paper in the secretary’s handwriting and saw the words “pushed to ground by Kyle and Justin jumping on my knee.” There was no reference to a football game. She denies that the handwritten document she saw was the Student Accident Report for that date. She says the Student Accident Report is not accurate because it says the injury occurred during football and it does not refer to Justin. She acknowledges other parts of the Student Accident Report are correct.

[118] Mr. Vandenbosch testified that he did not speak to Ms. Rizzuto or Anthony that day. He was on kindergarten duty and when he returned to the office Ms. Floris told him what had happened. He directed that she should complete an accident report which she had started. He agreed that Ms. Floris likely took notes on a template which she would then type into a computer to complete the Student Accident Report. The Student Accident Report accords with his recollection of what he was told. It says that Anthony:

injured his left knee while playing football. Another student landed on Anthony’s left knee injuring it. Mom said she would take for x-rays. Anthony said he was experiencing pain when he tried walking on it.

[119] The Communication Log transcribes the logbook entry of Ms. Hamilton’s interview with Anthony two months later, on November 26, 2009. Ms. Hamilton records that Anthony described the knee incident as follows:

a couple of months ago Justin Almonte bruised Anthony's knee. It was reported that he was running with the ball in a two hand touch game. Justin tried to get Anthony down by the foot. His body went down and he landed on his stomach. Justin fell on the knee. He received ice. Anthony said Justin said he had done it by accident. Anthony stated that it was on purpose.

[120] Ms. Rizzuto and Anthony testified that Mr. Vandenbosch helped Ms. Rizzuto carry Anthony to the car because he could not walk due to his knee. Anthony did not recall when Mr. Vandenbosch appeared, or whether he told Mr. Vandenbosch what happened. Mr. Vandenbosch denies doing so. He does not recall ever carrying a child to a car.

[121] Ms. Hamilton testified that the Student Accident Report was not discovered until mid-December because Ms. Floris had apparently put it in the secretary’s desk where it was later found by Ms. Hurley. Ms. Hamilton testified that accident reports are required to be prepared as soon as possible after the school becomes aware of a situation requiring a report. They would be typed up by the secretary. Accident reports can be prepared in different ways. Ms. Hamilton might take notes in her notebook and then transfer the information into an accident report. The secretary could fill out a blank hardcopy of the accident report and pass it on to the vice-principal or principal. The handwritten notes used to prepare the report would not typically be kept. Accident reports require the signature of the principal and the superintendent. Ms. Hamilton denied the report was fabricated after the fact.

[122] Ms. Hamilton agreed that if she had seen the report at the time, it would have given her the opportunity to find out what had happened during the incident. Ms. Hamilton saw the incident as grade 5 boys playing football, not a bullying incident.

[123] Mr. Vandenbosch testified that the information contained in the Student Accident Report would not have led him to conduct an investigation as it appeared to be an accident. He testified that he continued to be outside in the school playground to keep an eye on the football games.

[124] Ms. Rizzuto took Anthony to the hospital on September 18. Anthony recalled telling someone at the emergency room what had happened, but beyond that he did not have much memory of what happened at the visit.

[125] The ER note for September 18 records that Anthony was “playing full contact football – lying on ground. L [left] knee stepped on full force by another player – unable to weight bear since – 0 [no] prev injury”. Ms. Rizzuto says it would have been Anthony who reported this to the doctor.

[126] Anthony was shown the hospital notes. He did not recall telling anyone he was playing full contact football as reflected in the notes and said he feels his words were maybe misinterpreted. He does not recall that his knee was tested as described in the hospital notes.

[127] Anthony said he used crutches at school for a week to two weeks and everyone would have seen him with crutches including staff and teachers.

[128] Dr. Leone recalls seeing Anthony on crutches. He asked Ms. Rizzuto what happened. She told him students had been kicking Anthony and stepped on him. He had some concern that the first incident he was aware of had not apparently been addressed. He asked Ms. Rizzuto if she had approached the vice-principal.

[129] I find that on September 18, 2009, during a football game, Anthony was taken to the ground and his knee was forcefully landed on or stepped on by Justin. The incident was reported to the school secretary. Mr. Vandenbosch became aware of it, but Ms. Hamilton did not at the time. Mr. Vandensbosch did not see Anthony that day. The substitute school secretary prepared a Student Accident Report, but the Student Accident Report did not surface until mid-December 2009. No further investigation was conducted into the incident. I find that the way the incident was communicated to the school does not establish that Justin intentionally landed or stepped on Anthony’s knee.

Follow-up with School after the September 18, 2009 Incident

[130] The Original IDT and the Working IDT say the scratching incident occurred on September 23, 2009. It was moved to October 8, 2009 in the Final IDT.

[131] Ms. Rizzuto says that on September 24, 2009 she asked to speak with Ms. Hamilton or Mr. Vandenbosch. She left a note about her concerns. She eventually spoke with Mr. Vandenbosch about her concerns and that something needed to be done about aggressive play by Justin and Kyle.

[132] Ms. Hamilton testified that she does not have information personally about a complaint as testified to by Ms. Rizzuto or a request from Ms. Rizzuto that Ms. Hamilton speak with her. Ms. Hamilton was not aware of any schoolyard incidents at the time. If they had occurred, they should be reported to her to take action.

[133] Mr. Vandenbosch continued to be outside every day on lunch duty. He denied that he was approached around this time about allegations of ongoing severe incidents involving certain boys. If he had been told that he would have investigated further.

[134] Mr. Vandenbosch testified that Anthony approached him around this time and complained about Kyle swearing. Mr. Vandenbosch told him that he would speak to Kyle about it. He spoke to Kyle and Kyle denied it. Mr. Vandenbosch said he did not tell Anthony to deal with it on his own as had been alleged. He would not send a student to do what it was his job to deal with.

[135] Anthony’s evidence was that he was on crutches for a week or two after the September knee incident. As of September 24, 2009, six days later, he would, on his evidence, still have been on crutches.

[136] I find that concerns were expressed to Mr. Vandenbosch on September 24, 2009, with respect to aggressive play. I am not satisfied on the evidence that any specific complaints were made or that they related in any way to Anthony. I find that Anthony complained to Mr. Vandenbosch at the time about Kyle swearing. I find that Mr. Vandenbosch continued to be outside during lunch breaks and continued to monitor the football games.

The Scratching Incident (October 8, 2009)

[137] Anthony testified that there was an incident in October where they were on the grass, and he recalls being knocked over by Justin and Kyle and being smacked or scratched on the face while on the ground. He said it was possible they were playing football but scratching someone’s face is not part of football. He says he went and spoke with Mr. Vandenbosch and does not recall exactly what Mr. Vandensbosch said but had the impression he was to handle it himself. Anthony says he told his mother about it, and she raised it with the school.

[138] As noted, this incident was recorded in the Original IDT and the Working IDT as having occurred on September 23, 2009.

[139] Ms. Rizzuto says that on October 9, 2009, she spoke to Mr. Vandenbosch and reported what Anthony told her. She says Mr. Vandenbosch said he was not made aware of what happened. She asked him to have Anthony speak to him about what happened.

[140] Mr. Vandenbosch has no recollection and had no notations of a scratching incident. He has no record, and no recollection of what Ms. Rizzuto describes as taking place on October 9, 2009.

[141] Mr. Vandenbosch denied ever telling children to get lost as he would not say that. He described an incident where he was on lunch duty and approached the boys who were playing tackle football. They played together every day. He took the ball away and walked to the blacktop. The boys were complaining and chased after him, coming around him. He put up his hand, pointed to the field, and gave them a firm command to “Go.” He gave them gave them the ball back at the end of recess. An incident like this is set out as occurring on September 23, 2009, in the 2020 Email.

[142] I find that the scratching incident was not specifically reported in any detail to the school. I find that no details of any incidents or bullying pertaining to Anthony were reported to the school on October 9, 2009.

Events leading up to the November 23 incident

[143] Ms. Rizzuto says that in October and leading up to November 23, 2009, Anthony’s anxiety returned, his mental health started to decline, and he missed many days of school. Anthony also says he missed school during this time because of Justin and Kyle. This is not supported by Anthony’s school attendance records.

[144] Ms. Rizzuto admitted that she did not request any meetings with the school between October 9 and November 23, 2009, to discuss the previous incidents or issues although Anthony’s anxiety was a major development of concern to her.

[145] Anthony could have but did not report any of the incidents to his grade 5 teacher.

[146] Anthony said that he started playing football the day after the scratching incident. He continued to play football when at school leading up to November 23, 2009. He said that his mother might have told him not to play football, but if she did, he would have continued to play anyway so as not to lose his friends.

[147] Anthony acknowledged his discovery evidence that he was not that concerned about getting hurt before the November 23, 2009, incident and that the first time he was concerned about getting hurt was after that incident. He testified that he had been misinterpreted. He now says he was concerned about being injured but it was not significant enough to stop playing with his friends. He agreed that his discovery evidence is not consistent with his explanation in court.

[148] Mr. Vandenbosch has no recollection and had no notations of the boys asking that the other boys leave them alone and not play with them. There were no complaints, accidents or injuries leading up to November 23, 2009. There was, however, another time that he caught the boys playing tackle football and he took the ball away from them and barred them from playing football for a week.

[149] The only entry that Ms. Hamilton had recorded leading up to November 23, 2009, was a phone message from Ms. Rizzuto on November 3, 2009, which Ms. Hamilton returned on November 6, 2009, and left her own message. She did not receive a call back.

[150] Other than what I have found above, no other incidents of violence or aggressive play were reported to the school before November 23, 2009, and no other injuries were suffered by Anthony.

The November 23, 2009 Incident

[151] Anthony recalled the November 23 incident. He was playing football. He assumes they were playing tackle. He had the ball and was brought to the ground by Kyle and Justin kicked him in the head. He is not sure how many times he was kicked, but it was more than once. It happened very fast.

[152] When he got up, Anthony felt uncoordinated. He had a sense that the ground was “all the way up to [his] face” when standing up.

[153] Anthony has no memory of going back to class. He thinks he went home. He has some memories of going to the hospital. His mother was with him. He says it would have been both he and his mother telling someone at the hospital what happened. He recalls being examined but does not recall the doctor’s diagnosis. He recalled he had a bump on his head

[154] Anthony recalls having headaches and intermittent ringing in his ear lasting 15-20 minutes at certain times in the day. He could not recall if the ringing was in his right ear.

[155] Ms. Rizzuto testified that on November 23, 2009, Anthony came home from school and fell on the carpet in the front hallway and started crying. Anthony told her what had happened. Anthony’s right ear was all red and he was unable to get up. She called Dr. Leone.

[156] When asked by her counsel to look at her IDT which makes reference to a fight having started at school, Ms. Rizzuto said the note was accurate, but that she was “probably” just not recalling the fight. When asked again by her counsel whether after a fight started it “devolved to this”, she said yes, but she also that Anthony did not tell her this when he came home.

[157] Ms. Rizzuto called the school and spoke with Mr. Vandenbosch. The conversation was short because she had to deal with Anthony. She then called Dr. Leone who came over. As a result, she understood that she had to take Anthony to the hospital but had to wait until her husband came home to look after her younger son.

[158] Ms. Hamilton was not at the school on November 23, 2009. Mr. Vandenbosch first heard about the November 23 incident when he was called into the office to speak with Ms. Rizzuto over the phone. Ms. Rizzuto told hm Anthony came home, reported an incident with four boys and had bumps on his head. She provided the names of the four boys and said she was taking Anthony to the hospital. He understood she would come into the office the next day.

[159] Dr. Leone recalls seeing Anthony close to the date of his December 19, 2009, letter. Anthony was on the rug. He complained of discomfort on his scalp. Dr. Leone is not sure of the location. He assessed the area and found that some areas were spongy, and that Anthony had superficial contusion type injuries. There was no blood. He suggested that Anthony take Advil and rest and that Ms. Rizzuto monitor his symptoms and if they got worse, she should have him formally assessed.

[160] Justin and Kyle provided minimal evidence about the November 23, 2009, incident in their brief statements found in their settlement agreements.

[161] Justin’s discovery evidence was that he did not recall anything about the September 9, 2009, September 18, 2009, October 8, 2009, and November 23, 2009 incidents. He also testified at discovery that he had never done anything that required a warning or discipline. He had never seen anything like the four incidents occur at school.

[162] Justin’s statement does not give any indication he was involved in the November 23, 2009, incident.

[163] Kyle’s discovery evidence was that he did not see Justin kick Anthony. Kyle’s evidence in his statement is that Justin took Anthony down and kicked him.

[164] Justin and Kyle’s statements are not credible or reliable and are given no weight.

[165] Ms. Rizzuto took Anthony to St. Joseph’s where Anthony told the doctors what happened. The hospital records indicate that Anthony was kicked in the head twice.

[166] No accident or incident report was ever produced by the defendants for the November 23, 2009 incident.

November 24 meeting at the school

[167] Ms. Rizzuto, Ms. Hamilton, Mr. Vandenbosch and Sergeant Vanderpol testified as to what occurred on November 24, 2009. Ms. Rizzuto had called the police. Sergeant Vanderpol was dispatched to Holy Name just after 10 a.m. on November 24, 2009, for a report of an assault. Sergeant Vanderpol, Ms. Hamilton, Ms. Rizzuto and Mr. Vandenbosch met in Mr. Vandenbosch’s office. Ms. Rizzuto told them that Anthony had not told anyone what happened and that it was the second time he had suffered a concussion that year. Ms. Rizzuto said it was the same boys involved.

[168] Ms. Rizzuto told the others she would give the school the opportunity to investigate before involving the police. She says Ms. Hamilton told her she would begin the investigation immediately.

[169] Ms. Hamilton sent an email to Mary Cipolla, the Board superintendent of education at the time, at 4:27 p.m. on November 25, 2009, in which she discussed the November 24 meeting. She noted that there were no records of prior injuries reported. Ms. Hamilton records that she was prepared to interview Anthony on November 24 but deferred it because Ms. Rizzuto said she wanted to be present. Ms. Hamilton’s email notes that she would be interviewing students whose names were brought forward.

November 25 hospital attendance

[170] Ms. Rizzuto took Anthony to the hospital again on November 25, 2009 because he was experiencing nausea, dizziness and severe headaches.

[171] Anthony recalls returning to the hospital within a day or two because he had been complaining about a lot of head pain, problems with his ears and intermittent ringing and hearing difficulties. He recalls going into triage and reporting his symptoms to the nurse. After reviewing the medical notes of the November 25, 2009, visit to the hospital, Anthony recalled he had two bumps on his head and that he believes they were on the right side of his head. He complained of dizziness and head pain near the front of his head and right side, and it was painful to the touch. He was uncoordinated and dizzy. He was not vomiting but did not have much appetite.

[172] The hospital records that Anthony had been kicked in the head by two boys at school.

[173] The school received a report from Ms. Rizzuto on November 25, 2009 that a CT scan had been done on Anthony and everything looked normal.

[174] On November 25, 2009, Ms. Rizzuto left a message for Ms. Cipolla who directed the message to Ms. Hamilton and asked her to respond. Ms. Rizzuto received a call from Ms. Hamilton and was told that Ms. Hamilton had organized the investigation but wanted to speak with Anthony first.

November 26, 2009 Interview of Anthony

[175] Ms. Hamilton interviewed Anthony with Ms. Rizzuto present on November 26, 2009, at 1 p.m.

[176] Anthony did not give evidence as to what he told Ms. Hamilton during the interview. Anthony recalls the meeting but does not recall specific details. He did not recall his discovery evidence that his mother did most of the talking at the meeting.

[177] The evidence is that there was some tension between Ms. Rizzuto and Ms. Hamilton at the meeting. Ms. Hamilton felt Ms. Rizzuto was intervening when Ms. Hamilton was trying to get the information from Anthony. Ms. Rizzuto felt that Ms. Hamilton was putting words into Anthony’s mouth by making him imply that the injuries came about because of football. Ms. Rizzuto admitted that Ms. Hamilton wanted Anthony to share directly what he saw and heard.

[178] Ms. Hamilton reported to Ms. Cipolla about the November 26, 2009, meeting by email at 4:55 p.m. on November 28, 2009. Ms. Hamilton said she told Ms. Rizzuto she would move forward with the other interviews but that she could not give a definite time and that she could not disclose any consequences imposed because of confidentiality. She was told that the boys who she was to interview were away for a hockey tournament.

[179] Ms. Hamilton testified that she recorded what Anthony said about the incident in her logbook. In the Communication Log, the logbook entry was transcribed without a date. The entry records a 1 p.m. interview with Anthony. It is clear this refers to the November 26, 2009 interview of Anthony. Ms. Hamilton records that Anthony described the November 23, 2009, incident as follows:

… the boys were playing football at afternoon recess - Anthony Rizzuto, Kyle McKinven, Justin Almonte, Andre [M.], Sandy [C.] were trying to play. Boys were pushing. Anthony told Kyle to stop. Kyle pushed Anthony. Anthony pushed Kyle back. Anthony stated that Kyle punched him in the back and kicked him in the head two times. Robbie and Seth were blocking Sandy and Andre. Anthony indicated that he didn't go to get help.

[180] Anthony’s evidence at trial as to what occurred on November 23, 2009, differs significantly from what Ms. Hamilton recorded on November 26, 2009.

[181] A plan was put in place at the November 26, 2009, meeting that Anthony could come into the office if he was feeling unsafe. Mr. Vandenbosch would continue to monitor the yard. Around this time, after the November 23, 2009, incident, was the first time the two groups of boys were told to stay apart. Later in December, they had to be spoken to again and their parents were called to reiterate the requirement for the boys to stay apart.

[182] Jenny Carter testified that she met with Mr. Vandenbosch on November 26, 2009, to advise him that her son, Seth Carter, had information to give with respect to what happened with Anthony. She said she raised concerns at the meeting about the behaviour of Justin and Kyle that she had witnessed.

[183] The evidence of Ms. Rizzuto, Ms. Hamilton and Mr. Vandenbosch was that Anthony came to the office around November 30, 2009 to speak with Mr. Vandenbosch, but Mr. Vandenbosch was not available, and Anthony was not able to speak with him. Mr. Vandenbosch says he was on the phone at the time. Anthony may have been told to leave by student volunteers. Ms. Hamilton says that there were supply secretaries in the office that day who were not aware of Anthony’s situation.

December 1, 2009

[184] Ms. Rizzuto testified Ms. Hamilton called her on December 1, 2009 and told her the investigation was completed. Ms. Hamilton concluded that the injury resulted from a football game. She says Ms. Hamilton told her that she spoke to all the witnesses that Anthony provided.

[185] On December 1, 2009, Ms. Hamilton interviewed four boys – Justin, Kyle, Andre M. and Sandy C. Ms. Hamilton did not interview Mr. Carter or any other witnesses. She recorded the notes in her logbooks and transcribed them to her Communication Log. The notes say:

a. Kyle said Justin tackled Anthony and Justin kicked him;

b. Justin said he did not recall kicking Anthony;

c. Andre M. said Kyle tackled Anthony and the two of them got into a fight and they were on the ground hitting each other;

d. Sandy C. said Anthony started punching Kyle in the face first and later Kyle punched Anthony.

[186] Mr. Vandenbosch did not participate in these interviews. He testified that he would have interviewed all available witnesses.

[187] Ms. Cipolla said she found Ms. Hamilton’s investigation to be inconclusive. She assumed that other students who were present during the November 23 incident were interviewed.

December 2009

[188] Around December 9 and 10, 2009, there were further discussions between Ms. Rizzuto and Mr. Vandenbosch about alleged bullying and Kyle swearing and hanging around Anthony. Also on these dates, Ms. Rizzuto says that she spoke with Ms. Cipolla about Ms. Hamilton not interviewing witnesses and the names of witnesses.

[189] On December 16, 2009, Ms. Cipolla met with Ms. Hamilton and Mr. Vandenbosch. Mr. Vandenbosch was aware that Ms. Rizzuto was not happy with the results of the investigation. The school called Ms. Rizzuto on December 16, 2009, to pick up Anthony because he was dizzy.

[190] On December 17, 2009, Ms. Rizzuto was at the school and spoke with Mr. Vandenbosch. She says he apologized saying that he did not handle things as he should have but he could not report the November 23, 2009, incident as a violent incident because Ms. Hamilton took it out of his hands. He said he would make sure it gets reported as a violent incident report. Mr. Vandenbosch testified that he told Ms. Rizzuto he would phone the police who were going to investigate. He apologized that Anthony was injured and said he felt sorry that Ms. Rizzuto felt he had not done enough about it. He said he would never do anything to allow a child to get hurt, including Anthony. He denies that he apologized in the way that Ms. Rizzuto testified or that he said that appropriate action was not taken.

[191] Mr. Vandenbosch said that the police were contacted because Ms. Rizzuto was not satisfied with Ms. Hamilton’s investigation. He believes that Ms. Cipolla directed that the police be called. Ms. Rizzuto says she elected to go to the police because the school did not conduct a proper investigation.

[192] I accept Mr. Vandenbosch’s evidence of what occurred on December 17, 2009.

Police Investigation

[193] Constable Zafirides was dispatched to Holy Name on December 18, 2009, regarding an assault on November 23, 2009. She was called by the school. She met with Mr. Vandenbosch who told her there had been an incident involving several grade 5 students. Cst. Zafirides was given the names of five independent witnesses by Mr. Vandenbosch but was told that they had not been contacted at that time.

[194] Cst. Zafirides attended the Rizzuto residence on December 19, 2009 and met with Ms. Rizzuto. Anthony was present. Ms. Rizzuto testified that Anthony gave the officer a synopsis of events and that she did not provide the information to the officer. Cst. Zafirides testified that Ms. Rizzuto reported to her what had happened to Anthony at the school. She does not recall Anthony saying anything.

[195] Ms. Rizzuto told Cst. Zafirides that the recent incident was the fourth incident involving the same four suspects. The first occurred on September 9, 2009, when Justin allegedly pulled Anthony to the ground and repeatedly jumped on his knee. The second incident occurred on September 23, 2009, when Anthony was pushed down and scratched on the face by Kyle while Andre and Sandy held him down. She was told that Mr. Vandenbosch was advised of the incident. The third incident occurred on October 8, 2009, when Anthony was pushed down by Kyle and repeatedly kicked in the head by Justin.

[196] Cst. Zafirides did not conduct the investigation and was not involved further.

[197] Ms. Rizzuto testified that she first met with the officer assigned to the case, Constable Patrick Mitchell, on December 29, 2009. She acknowledged the police used the first version of IDT for their investigation.

[198] Ms. Rizzuto gave various accounts as to the number of times she met with Cst. Mitchell and whether Anthony was present.

[199] Officer Mitchell was not available to testify at trial. Pursuant to a mid-trial ruling, his occurrence report was admitted into evidence for limited purposes. The names of other children had been redacted from the occurrence report filed. According to the report, Officer Mitchell obtained “seven informal statements”, the particulars of which are not set out in the occurrence report and were not introduced in evidence. Officer Mitchell noted that “several of the boys were initially dishonest with the police as well, but further investigation led to eventual admissions that when compared, were quite similar in detail.” Officer Mitchell’s occurrence report indicates that the following best describes what happened on November 23, 2009:

• Anthony and [redacted name] started a verbal argument during a game of football.

• Anthony was pushed to the ground by [redacted name] and the two boys began to fight.

• [redacted name] and [redacted name] joined in, pushing or holding Anthony.

• [redacted name] kicked Anthony at least once, in the head.

• The other boys were either witnesses or assisted in an effort to end the altercation.

[200] As a result of the investigation, Officer Mitchell recorded that the police would liaise with the school and make recommendations to assist them in investigating such incidents in the future. He made no conclusions as to the competency of the defendants’ investigation.

Findings regarding November 23, 2009, incident

[201] I find that on November 23, 2009, there was an altercation between Kyle and Anthony arising out of a football game. I find that while Anthony was on the ground, he was kicked in the head at least once. The events unfolded quickly. I cannot conclusively determine if it was Kyle or Justin who kicked Anthony in the head.

No Subsequent Incidents

[202] Anthony testified that after November 23, 2009, he continued to play touch football. He did not play tackle football with Justin and Kyle and if they were playing, he would have made the decision not to continue playing.

[203] Ms. Rizzuto agreed there were no more physical incidents involving Anthony after November 23, 2009. Ms. Rizzuto made no further complaints about physical incidents with Anthony after November 23, 2009.

[204] Mr. Vandenbosch continued to monitor the playground to keep the two groups of boys apart.

No Incessant Verbal Harassment

[205] The plaintiffs assert there was “incessant verbal harassment” of Anthony. The plaintiffs have not established that there was incessant verbal harassment or that it was reported to the school.

[206] Anthony did not give evidence of incessant verbal harassment.

[207] Anthony gave evidence that there was a lot of “classic stuff” like verbal cussing and name calling which occurred. There was swearing and calling people names and comments about family and appearance. He did not identify the individuals who made these comments, when they occurred, their frequency, nor to whom or when these alleged incessant incidents were reported. He also acknowledged engaging in this conduct himself.

[208] The evidence does not establish that alleged incessant verbal harassment of Anthony occurred prior to November 23, 2009 or was reported to the school.

LIABILITY

Standard of Care

Law: Reverse Onus

[209] The plaintiffs submit that there is a reverse onus on the defendants to disprove allegations of a breach of their fiduciary duty. I do not agree.

[210] The plaintiffs’ claim is framed in negligence. Insofar as it can be determined in the absence of a pleading of breach of fiduciary duty, it appears the factual basis of the alleged negligence is the same as any alleged breach of fiduciary duty. No motion to amend the statement of claim has been brought by the plaintiffs. The plaintiffs cannot now add a claim for breach of fiduciary duty. Even if the plaintiffs could add a claim for breach of fiduciary duty at this juncture, I would find that this is not a case of a breach of loyalty, breach of trust, or turning a blind eye to abuse by the school or its employees that would give rise to a breach of fiduciary duty.

[211] The legal authorities provided by the plaintiffs do not support the plaintiffs’ position that there is a reverse onus on the defendants to disprove allegations of negligence or breach of fiduciary. The plaintiffs bear the onus of establishing that but for the defendants’ conduct, the November 23, 2009, assault would not have occurred. The legal authorities cited by the plaintiffs do not deviate from the principal that a plaintiff must prove cause in fact.

[212] The cases referred to by the plaintiffs establish that once a breach of fiduciary duty is found, the burden may shift to the fiduciary to disprove the losses that the plaintiff claims flow from the breach.

[213] The Court of Appeal for Ontario addressed the reverse onus issue in Stirrett v. Cheema, 2020 ONCA 288, at paras. 113-15:

We do not accept the respondent's “reverse onus” approach to causation. This approach may apply where a plaintiff has first satisfied the burden of establishing cause in fact. At the stage of assessing damages, it may permit the defendant to argue that the injured party would have, in any event, assumed a position “other than the status quo ante” and that this should be taken into account in calculating damages: Rainbow Industrial Caterers Ltd. v. CaMs. Rizzuton National Railway Co., 1991 27 (SCC), [1991] 3 S.C.R. 3, at pp. 15-16. This is the point made in Hodgkinson v. Simms, 1994 70 (SCC), [1994] 3 S.C.R. 377, where the defendant argued unsuccessfully that the plaintiff, who had relied on the defendant to make a particular investment, would have invested in tax shelters in any event, and suffered market losses.

In this case, the reverse onus does not apply. The respondent did not first establish that the appellant's breach caused Mr. Stirrett to undergo the February 10, 2005 angiogram. In the present case, the “reverse onus” approach might arguably have applied to the assessment of damages, had damages not been agreed, but does not apply to the question of cause in fact.

For these reasons, we do not accept the respondent's argument that the onus was on the appellant, as the breaching fiduciary, to demonstrate with concrete evidence that Mr. Stirrett would have undergone the February 2005 angiogram irrespective of the breach. The onus was on the respondent to establish that the appellant's breach was the cause in fact of the respondent's loss.

[214] In summary, the plaintiffs must prove cause in fact on a balance of probabilities.

Plaintiffs’ burden

[215] To succeed in their claim, the plaintiffs must prove on a balance of probabilities that the defendants fell below the standard of care, that the breach of the standard of care was the cause of the November 23, 2009, incident, that the November 23, 2009 incident caused Anthony’s injuries, and that Anthony has suffered damages as a result.

[216] A determination of liability requires a determination of the following issues:

a. The standard of care;

b. Whether the defendants breached the standard of care by:

i. Not conducting an investigation into the September 2009 incidents;

ii. Losing the Student Accident Report of September 18, 2009;

iii. Not properly investigating the November 23, 2009, incident;

iv. Not preparing a report for the November 23, 2009, incident;

v. Allowing the logbooks to be removed and destroyed;

vi. Failing to have sufficient supervision;

vii. Failing to comply with the bullying policy; and

viii. Failing to comply with the requirements of the Education Act.

c. Would the November 23, 2009 incident have occurred but for any breach of the standard of care?

Applicable Standard of Care

[217] The plaintiffs submit that school boards owe a common law duty of care towards students and have a positive duty to take action in cases of bullying. Further, the plaintiffs submits that the general standard of care to be exercised is that of a “careful or prudent parent”. I agree. There is a duty of care owed by the school board and staff to protect students from unreasonable risk of harm at the hands of other members of the school community and a school board has a duty to maintain a positive school environment for all persons served by it: see Myers v. Peel Co. Bd. Of Education, 1981 27 (SCC), [1981] 2 S.C.R. 21, at p. 31; Ross v. New Brunswick School District No. 15, 1996 237 (SCC), [1996] 1 S.C.R. 825, at para. 42; C.O. v. Williamson, 2020 ONSC 3874, at para. 98.

[218] The standard of care will depend on the circumstances, including the context of the standards prevailing at the time of the alleged negligence. Further, in cases where the alleged negligence relates to a duty referred to in legislation, such as the failure to provide adequate supervision, the standard is necessarily modified: see Lee v. Toronto District School Board, et al., 2013 ONSC 3085, at para. 57. As the Supreme Court explained in Myers, at p. 31:

[The careful and prudent parent standard] is not, however, a standard which can be applied in the same manner and to the same extent in every case. Its application will vary from case to case and will depend upon the number of students being supervised at any given time, the nature of the exercise or activity in progress, the age and the degree of skill and training which the students may have received in connection with such activity, the nature and condition of the equipment in use at the time, the competency and capacity of the students involved, and a host of other matters which may be widely varied but which, in a given case, may affect the application of the prudent parent-standard to the conduct of the school authority in the circumstances.

[219] In the cases relied on by the plaintiffs with respect to the standard of care, courts found that the school board breached the standard of care where the evidence demonstrated recurring inaction in the face of complaints, known issues, or in the face of foreseeable risk. The recurring nature of the problem was a significant factor when determining whether the school board’s conduct fell below the “careful and prudent parent” standard of care.

[220] The defendants submit that the standard of care is not breached if the injury results from a spontaneous act even with continuous and higher levels of supervision. The defendants cite Deborah Tilli v. Hamilton-Wentworth Catholic District School Board et al., 2019 ONSC 1783 and Patrick v. St. Clair Catholic District School Board., 2013 ONSC 4025. The Court of Appeal for Ontario’s decision in Da Silva v. Gomes, 2018 ONCA 610, at para. 15 addresses the issue:

… The law is clear that supervising authorities are not legally responsible for “a sudden unexpected event in the midst of an acceptable, safe activity”: Patrick v. St. Clair Catholic District School Board [2013] O.J. No. 6216, at para. 266. See Lee (Litigation Guardian of) v. Toronto District School Board [2013] O.J. No. 1157 at paras. 104-05; Rollins (Litigation Guardian of) v. English Language Separate District School Board No. 39, [2009] O.J. No. 6193 at para. 170, and cases cited in it, appeal dismissed 2012 ONCA 104, [2012] O.J. No. 646. …

[221] In Patrick v. St. Clair Catholic District School Board, at para. 272, the court found no liability:

While I find that the school did not deal effectively with the teasing and what can only be called bullying especially as it pertains to Jeffrey, I am not satisfied on the balance of probabilities that the proper solution was to provide a higher level of supervision of Jeffrey while he was on the schoolyard. A review of the Violence Free School Policy does not make any reference to such a procedure. The fact that no extra supervision was provided, even though in hindsight it might have been helpful, does not in itself breach the duty of care the school owed to Jeffrey. The evidence does not support a finding that a higher level of supervision or a direction to the schoolyard supervisor to keep an extra eye out for Jeffrey would have prevented the incident. I find that it was a sudden, unexpected event and the plaintiffs have not established otherwise on the balance of probabilities…. [Emphasis added.]

[222] In Deborah Tilli v. Hamilton-Wentworth Catholic District School Board et al., the court relied on Patrick and found that the defendant’s conduct did not fall below the “reasonable and prudent parent” standard. The court considered the “sudden and spontaneous” nature of the event, in addition to the absence of prior discipline issues and expert evidence showing the school’s supervision policy fell below the accepted standard or the standard prevalent in other schools. As the court put it at para. 95:

It is not lost on this court that this was a sudden and spontaneous event that escalated and finished in approximately 30-45 seconds. Only by having a teacher posted in the exact area of this incident, at the very time it occurred, could the school perhaps have prevented the fight from occurring. Such a standard is not reasonable and certainly not one any reasonable and prudent parent would be expected to adhere to with its own teenage child.

[223] I agree with the statement in Gu v. Friesen, 2013 BCSC 607, that a reasonable regime of supervision or the proper discharge of the school’s responsibilities does not require that all students are constantly deterred from bad behavior by the immediate presence of a supervisor at all times.

Board admissions as to standard of care

[224] The Board’s witnesses made the following relevant admissions:

a. The school, administrators and teachers have an obligation to ensure students are safe at school and are not injured at school.

b. If a student is injured at school, it is documented. Also, an administrator would take action. Such actions could include speaking to the offending student, giving a warning, or possibly keeping a student in at recess;

c. When the school learns that a student has been injured by another student, an investigation is required. The purpose of the investigation is to determine the reason for the injury.

d. The school has a duty to record the information received of an injury by way of an accident report or an injury report depending on the nature of the injury and the principal and superintendent would be made aware of the report.

e. A report is typically prepared contemporaneously with the information being received.

f. The vice-principal is obligated to report an injury to the principal.

g. If a parent contacts the school to advise that a child has been injured by another student, that will start the investigation process. The information from the parent would be investigated to determine the extent to which the information relayed by the parent was a fact.

h. To investigate, interviews could be conducted of the injured student, the alleged perpetrator and other student witnesses depending on the information received from the first two of the above.

i. Reports and records assist the school in determining whether a student is being bullied and in protecting students. If reports and records are not made about incidents, the school cannot determine if a student is being bullied. Properly applying progressive discipline requires a record or information trail.

j. A report of a concussion raises the level of inquiry of the school.

k. If incidents of injury were reported to have occurred during a football game, the principal, vice-principal or supervisor would be on the alert for improper behaviour and could watch the football games to determine the nature of the behaviour or could tell the students that the game can no longer be played.

l. Teachers who are on duty are required to check to see that children do not get aggressive and get hurt on the playground.

m. If a student was injured by another student by deliberate action, it would be very serious, and suspension would be considered. The game played by the students might no longer be allowed.

n. After the November 23, 2009, incident an accident report should have been completed. A review of previous accident reports would have been done to assist in determining if there was a problem with one of the students.

Investigations into the September 2009 incidents

[225] The plaintiffs assert the defendants fell below the standard of care by failing to investigate the first three incidents.

[226] I have found that the plaintiffs did not report the first kick incident. Accordingly, no investigation was required to be undertaken. In addition, what evidence there is suggests that if there was a report by Ms. Rizzuto, it was not reported in a manner that would suggest it was a deliberate act.

[227] As I have found that there were no specific details of complaints or perpetrators or injuries reported on September 17, 2009, no investigation was required to be undertaken.

[228] The September 18, 2009, incident was not investigated. I find that the defendants failed to take any steps to inquire into the incident. No students were interviewed, including Anthony. This was a breach of the standard of care. Inquiries should have been made at a minimum of Anthony and the boys involved in the incident.

[229] As I have found that there were no specific details of complaints reported on September 24, 2009, no investigation was required to be undertaken.

[230] I have found that the scratching incident was not specifically reported to the school. Accordingly, no investigation was required to be undertaken.

Losing the September 18, 2009, Student Accident Report

[231] The defendants fell below the standard of care in losing the September 18, 2009, Student Accident Report. In addition, the defendants fell below the standard of care in that the accident and injury to Anthony was not brought to the principal’s attention as the defendants acknowledged they were required to do, and the Student Accident Report was not forthwith provided to the superintendent for review and signature.

Improper investigation into November 23, 2009, incident

[232] The defendants fell below the standard of care in failing to conduct a fulsome investigation of the November 23, 2009, incident. Ms. Hamilton did not interview all available witnesses, including potentially independent witnesses. Mr. Vandenbosch would have done so. Ms. Cipolla expected it would have been done. It would have been prudent to do so.

Failing to prepare a report for November 23, 2009, incident

[233] The defendants breached their own policies and the standard of care in failing to prepare any report with respect to the November 23, 2009, incident. No report was provided to the superintendent for review and signature.

Allowing the logbooks to be removed and destroyed

[234] The Board had no policy addressing the retention, preservation, removal and destruction of the administrators’ logbooks.

[235] The evidence is that the logbooks contain information about identifiable individuals held by school boards and as such is subject to MFIPPA, must be protected, and is confidential except under the strictest conditions.

[236] Sections 4.1 of MFIPPA provides:

4.1 Every head of an institution shall ensure that reasonable measures respecting the records in the custody or under the control of the institution are developed, documented and put into place to preserve the records in accordance with any recordkeeping or records retention requirements, rules or policies, whether established under an Act or otherwise, that apply to the institution.

[237] In my view, the Board fell below the standard of care in failing to have a policy addressing the retention, preservation, removal and destruction of the administrators’ logbooks.

Supervision at the school

[238] There was little evidence led at trial with respect to the supervision at the school. There was no evidence as to the number of students on the playground at recess or lunch, the layout of the school playgrounds, or the number of areas to be supervised.

[239] The plaintiffs submit that there was evidence of a total lack of adequate supervision under Ms. Hamilton and Mr. Vandenbosch. The plaintiffs rely on the evidence of Kyle and Justin in their Settlement Agreements that numerous fights and injuries were typical in the schoolyard during recess. Kyle and Justin’s statements were not subject to cross-examination, and in some cases, inconsistent with their discovery evidence and the evidence led at trial. Kyle and Justin’s statements are given little to no weight.

[240] The plaintiffs say Kyle and Justin’s evidence was echoed by Seth Carter. Mr. Carter’s evidence regarding supervision at the school was self-contradictory and contradicted the evidence of witnesses about teachers patrolling the yard which caused the boys to switch from tackle to touch football. Mr. Carter’s evidence was both that the supervisors stayed on the blacktop and that the boys had to be careful not to play tackle football so that the teachers would not take their ball away. There would be no purpose in being careful not to play tackle football if the supervisors were not patrolling the yard. I do not accept Mr. Carter’s evidence on supervision.

[241] In his discovery evidence admitted at trial, Kyle testified that there were usually three teachers on supervision outside the school. He said there were times when the teachers intervened and told them to stop playing because they were playing tackle football.

[242] Justin’s discovery evidence admitted at trial made it clear there were teachers on duty during the recesses.

[243] Anthony recalled that Mr. Vandenbosch would be outside sometimes and he recalled there being one or two supervisors on the playground.

[244] Mr. Vandenboch’s evidence was that he was patrolling the yard. The evidence demonstrates that on two occasions in the fall of 2009 he took the ball away from the boys playing football – once for the duration of a recess and once for a week.

[245] The plaintiffs led no expert evidence, or evidence from school administrators on the appropriate level of supervision in the schoolyard or that the supervision on the playground was insufficient.

[246] There was no evidence of other issues involving Justin and Kyle or that there were reasons to suggest they needed greater levels of supervision generally.

[247] In my view, the careful or prudent parent standard does not require that all activities which could lead to injury or all appropriate activities which a child could potentially convert to a dangerous activity be barred or be subject to constant supervision.

[248] The plaintiffs have not established a breach of the standard of care with respect to supervision of the schoolyard. In any event, the evidence does not support a finding that a higher level of supervision would have prevented the November 23, 2009, incident.

Board Policies on bullying

[249] Ms. Kovach, a current superintendent of the Board, gave evidence as to the policies governing the Board and the Board’s policies. The Ministry of Education creates policy/program memorandums (“PPMs”) addressing the expected behaviours of students in school and measures to address infractions. The Board is then required to establish its own policies based on the Ministry documents.

[250] Ms. Kovach testified that in 2007 there was a change regarding the suspension and expulsion of students to the application of progressive discipline when there are student infractions. She said that a progressive discipline approach required the Board to use a range of interventions, supports and consequences that are developmentally appropriate and provide students with the opportunity to learn from mistakes.

[251] Ms. Kovach’s evidence was that bullying was defined in an October 19, 2009, PPM as typically a form of repeated, persistent, and aggressive behaviour directed at an individual or individuals. In Ms. Kovach’s view, this typically involves behaviour that occurs daily and takes place in different forums and in different areas such as playgrounds, social media, washrooms, classrooms and incorporates varying types of physical and verbal conduct, rather than one-off incidents during play or a game.

[252] Prior to considering suspension for bullying, Ms. Kovach said a principal is required to consider progressive discipline promoting positive behaviour. Progressive discipline includes informal and formal interviews with students, verbal reminders, review of expectations, parental involvement, detention, and written assignments. Discipline is to be applied within a framework that shifts the focus from one that is solely punitive to one that is both corrective and supportive. Suspension can be considered where the continuing presence of the student in the school creates an unacceptable risk to the safety of other students. The principal must consider whether progressive discipline has been used with the student as well as the student’s age. Restorative practices are also a strategy to be used to address bullying.

[253] Ms. Kovach acknowledged that to apply progressive discipline the bullying behaviour must first be identified.

[254] Ms. Hamilton testified that if there were serious allegations of increasing physical or verbal activity something would be done about it – it would not be ignored.

[255] Subsection 1(1) of the Education Act defines “bullying” as aggressive and typically repeated behaviour by a pupil where,

(a) the behaviour is intended by the pupil to have the effect of, or the pupil ought to know that the behaviour would be likely to have the effect of,

(i) causing harm, fear or distress to another individual, including physical, psychological, social or academic harm, harm to the individual’s reputation or harm to the individual’s property, or

(ii) creating a negative environment at a school for another individual, and

(b) the behaviour occurs in a context where there is a real or perceived power imbalance between the pupil and the individual based on factors such as size, strength, age, intelligence, peer group power, economic status, social status, religion, ethnic origin, sexual orientation, family circumstances, gender, gender identity, gender expression, race, disability or the receipt of special education; (“intimidation”).

[256] The Board’s Policy Manual for Students S.M.15 Bullying Prevention and Intervention defines bullying in reference to the Education Act definition.

[257] The Board also had a policy document entitled “Responding to Bullying Behaviour” dated September 2006. It contains the following relevant excerpts:

Rationale

The Hamilton-Wentworth Catholic District School Board recognizes that bullying behaviour has a negative effect on the school community. Students who are intimidated and victimized at school are unable to give their education the full attention and effort needed for success. Bullying behaviour can also lead to more serious violence and to long-term social and emotional problems on the part of bullies, victims and bystanders. Every student has the right to be safe in and around the school.

Definition

Bullying behaviour consists of negative actions which may be physical or verbal in nature, have hostile intent, are repeated over time and involve a power differential between bully and victim.

Bullying may be physical (e.g. hitting, kicking, punching), verbal (e.g. name- calling, teasing, threatening), social (e.g. excluding an individual from a group on purpose, initiation or hazing rituals, subtle social manipulation such as malicious gossip or rumours) or computer-based (e.g. using the internet or e-mail to ridicule, spread rumours, threaten).

Bullying Behaviour is Prohibited

The Hamilton-Wentworth Catholic District School Board and its staff members shall not tolerate any form of bullying behaviour in any school facility or at any school-related activity on or off campus.

Staff Intervention

The Hamilton-Wentworth Catholic District School Board expects staff members who observe or become aware of an incident of bullying behaviour to take immediate, appropriate steps to intervene, including informing the school principal/vice-principal of the incident.

Students and Parents/Guardians Shall Report Bullying Behaviour

The Hamilton-Wentworth Catholic District School Board expects students and parents/guardians who become aware of an incident of bullying behaviour to report it to the school principal/vice-principal for further investigation.

Investigative Procedures

Upon learning about an incident of bullying behaviour, the school principal or designate shall contact the parents of both the alleged aggressor and the victim, interview both students and thoroughly investigate. The investigation may include interviews with students, parents and school staff, review of school records and involvement of the Board's Student Services Department. Depending on the results of the investigation, the Police may become involved.

Was there a breach of the bullying policies?

[258] The plaintiffs assert the defendants were negligent in applying the definition of bullying and in the application of the Board’s own policies with respect to bullying. The plaintiffs frame the liability question as follows:

Was the bullying behavior as defined, repeated over a period of time such that the school could have intervened with consequences applied to the bully/bullies on an ever-increasing basis to protect Anthony from further injury?

[259] In my view, the answer to that question is no.

[260] The type of conduct to which Anthony was subjected – being kicked in the head, being scratched, and someone stepping on his knee – if done intentionally, is the kind of conduct included in the definition of bullying.

[261] However, the behaviour reported to and known by the defendants was not repeated behaviour which met the definition of bullying. Excepting the November 23, 2009, incident, the reported conduct was not of clear hostile intent. It was not in a context of real or perceived power imbalance that would have been evident to the Board.

[262] On the evidence, the only power imbalance could have come from the fact that Justin and Kyle were bigger than Anthony. However, Anthony admitted to fisticuffs with Kyle. The size difference did not deter him. Anthony continued to voluntarily play football whenever he was able to, even after the September 2009 incidents and complaints and even if Justin and Kyle played. I find on the evidence that Anthony was not fearful or distressed prior to the November 23, 2009, incident.

[263] The Board was only aware of general concerns raised on September 17, 2009, about aggressive play during football with no particulars provided. The knee incident on September 18, 2009, was known to the school but was reported in a manner that suggested the injury occurred during a football game and was reasonably interpreted as having occurred during a football game. The generic complaints made on September 24, 2009, did not disclose bullying of Anthony. Based on Anthony’s evidence of how long he was on crutches, he was not likely playing football between September 17 and September 23, 2009, and so any concerns expressed about aggressive play were not directed at him.

[264] Even if the September 18, 2009, incident could be considered bullying, there were no other reported specific incidents directed at Anthony until the November 23, 2009, incident.

[265] Accordingly, I find that the school did not fall below the standard of care with respect to the application of the bullying policy.

Was there a breach of the Education Act?

[266] The plaintiffs assert a breach of s. 310(1)(3) of the Education Act, which provides in relevant part that a principal shall suspend a student she believes has, while at school, committed a physical assault on another person that causes bodily harm requiring treatment by a medical practitioner.

[267] The Board’s Policy Manual regarding student conduct and discipline contains a similar directive to suspend a student who engages in the above-described conduct.

[268] The plaintiffs have not established on a balance of probabilities that the knee incident on September 18, 2009, was reported as an assault, or was an assault. Given the description of the incident as occurring during a football game and the nature of the injury – Anthony’s knee being forcefully stomped or stepped on – it is not evident that any investigation would have resulted in a finding that it was an assault. I find no breach of the Education Act or the Board’s Policy Manual.

[269] In my view, the November 23, 2009, incident was an assault on Anthony. The Board is in breach of s. 310(1)(3) of the Education Act and its Policy Manual with respect to the November 23, 2009, incident.

Causation in fact – could the November 23, 2009, incident have been prevented but for any breach of the standard of care?

[270] The failure to conduct an investigation and prepare a report of the November 23, 2009, incident had no impact on whether that incident would have occurred or could have been prevented. The same can be said for the breach of s. 310(1)(3) of the Education Act and the Board’s Policy Manual with respect to the November 23, 2009, incident.

[271] Similarly, the failure to have a policy addressing the retention, preservation, removal and destruction of the administrators’ logbooks is not a cause in fact of the November 23, 2009, incident. The logbooks were destroyed long afterwards.

[272] The failure to have the September 18, 2009, Student Accident Report available could have impacted what steps were taken to deal with Justin and Kyle. However, there were no incidents reported to the school that specifically referenced violence or bullying conduct perpetrated by Justin and Kyle toward Anthony between September 19, 2009, and the November 23, 2009, incident. Therefore, the loss of the report is not a cause in fact of the November 23, 2009, incident.

[273] Even the failure to suspend Justin after the knee incident on September 18, 2009, was a breach of the Education Act, the plaintiffs have led no evidence of the nature or length of the suspension required to be imposed. Given that section 310(3) of the Education Act provides for a suspension of up to 20 school days, Justin would have been back at school prior to November 23, 2009.

[274] There is no evidence that any progressive sanctions or suspension of Justin would have prevented the November 23, 2009, incident. Mr. Vandenbosch testified that even with suspension, sometimes students do not change their behaviour and continue with the same conduct and behaviour. No evidence was led that expulsion was the appropriate response to the knee incident.

[275] In my view, it was not necessary to have stopped the football games altogether. The boys were allowed to play touch football. The boys understood they were not to play tackle football. They went out of their way to play contact football when the supervisors could not see them. In short, they intentionally hid their behaviour which would have led to sanction from the defendants. Anthony participated in this.

[276] Steps were being taken by Mr. Vandenbosch to monitor and address the issues with rough play during football following September 18, 2009. Principally those steps were to have Mr. Vandenbosch in the yard to keep an eye on the conduct of the boys. On two occasions Mr. Vandenbosch imposed the consequence of taking the football away from the boys to prevent them from playing. On one occasion he took the ball away for a week.

[277] The thrust of the plaintiffs’ position, evidence, and cross-examinations was that the incidents were not a part of football, even if they occurred in the context of a football game. This is true. No child playing football, even contact football against school rules, expects to be held down and kicked in the head.

[278] The plaintiffs’ position points to the spontaneous and unexpected nature of the November 23, 2009, assault. It was not part of the sanctioned activity – touch football. It took place as part of conduct that the boys deliberately hid from the supervisors – tackle football and it erupted spontaneously.

[279] I find that the events giving rise to Anthony being kicked in the head on November 23, 2009, were sudden, unexpected, and impulsive events.

[280] I conclude that the plaintiffs have not established that any breaches of the standard of care by the defendants caused the November 23, 2009, incident. I am also unable to conclude more supervision or disciplinary measures would have deterred or prevented the November 23, 2009, incident.

Causation – did the November 29, 2009, incident cause Anthony’s tinnitus?

Eustachian Tubes

[281] Ms. Rizzuto testified that in approximately 2004, Anthony had tubes put in his ears to relieve the fluid in his ears. He had surgical intervention for this issue on two or three occasions because he was having recurring ear problems. She could not recall when Anthony last had the tubes out.

[282] Anthony said he had occasional problems with water in his ears which created slight irritation but nothing too bad. He recalls being told about having tubes in his ears but does not recall it because he was very young.

Onset of tinnitus

[283] Ms. Rizzuto said Anthony’s tinnitus started around the beginning of December 2009. Anthony testified that after November 25, 2009, the intermittent ringing in his ears got slightly worse over the next year or so. He described it as a high-pitched intermittent buzz. Within a year it became more chronic and stayed with him.

Dr. Archibald

[284] Dr. Jason Archibald is a participant expert otolaryngologist who saw Anthony on March 1, 2012, for a 20-minute appointment. According to the history provided to Dr. Archibald, Anthony had complained of bilateral tinnitus for two years, with the right side being worse.

[285] Dr. Archibald described three types of hearing loss – sensorineural, conductive, and mixed, which is a combination of the first two. Sensorineural hearing loss refers to hearing loss of hearing of the inner ear, or the cochlea or cochlear nerve. For the most part it is a permanent hearing loss often treated with hearing aids. Where hearing aids are not helpful, a cochlear implant is an option to restore some hearing. Conductive hearing loss suggests a problem in the middle ear, or the ear drum, or the ear canal. This type of hearing loss can potentially be corrected with surgery or a hearing aid. With a mixed hearing loss, part of the loss can potentially be treated and part cannot.

[286] Dr. Archibald testified that tinnitus is extremely common with head injury or trauma. Tinnitus is unpredictable; it can improve, stay the same, or get worse. Symptoms can be influenced by anxiety, depression, or sleep deprivation.

[287] Dr. Archibald conducted an audiogram and examined Anthony. The examination was normal – including normal hearing reflexes and tympanogram (which looks at the movement of the eardrum, the middle ear pressures and the compliance of the ear canal). Dr. Archibald concluded that Anthony presented with a history of head trauma in 2009, leading to bilateral tinnitus, right ear worse than the left. He had a normal ear exam and a hearing test showing a mild sensorineural hearing loss which was felt to be secondary to a cochlear concussion related to his injury.

[288] According to Dr. Archibald, the tests suggest permanent impairment. Surgery would not assist Anthony. Hearing aids are commonly used in mild hearing loss.

[289] Dr. Archibald suggested treatment by masking. Masking can be done through hearing aids, with external devices, or with earphones and a device such as an iPod. Dr. Archibald suggested a specialist for tinnitus retraining therapy which would include counseling, cognitive behavioral therapy and habituation therapy, if the symptoms become severe and disabling. The therapy is designed to teach people to cope with tinnitus symptoms. It can improve quality of life, but like all treatment, can have varying degrees of success. He agreed that if he recommended therapy, there might be some benefit and value to the treatment.

[290] Dr. Archibald had two follow-up appointments with Anthony and reviewed two subsequent audiograms from May 24, 2013 and August 22, 2014. From those he concluded that Anthony had persisting sensorineural loss in the right ear; there was no change in his condition for the most part and no change in his management plan.

Dr. Brant

[291] The plaintiffs called Dr. Michael Brant, an otolaryngologist. Dr. Brant was qualified as an expert in otolaryngology for ear or hearing disorders including tinnitus disorders. Approximately 20 percent of all patients he sees have tinnitus. He first saw Anthony on July 20, 2020.

[292] Dr. Brant understood from Anthony that on September 9, 2009, Anthony was hit or kicked in the head and that he was repeatedly kicked to the right side of the face and temple on November 23, 2009. He understood there were three areas on Anthony’s scalp that were swollen adjacent to his ear.

[293] Anthony complained to Dr. Brant of bilateral tinnitus. Dr. Brant described tinnitus as “the perception of sound in the absence of an external stimulus”. He testified that tinnitus is a subjective symptom and that there is no true objective test for tinnitus. There are experiential scales that are sometimes used to quantify the tinnitus. Dr. Brant gave no evidence of their use in testing Anthony.

[294] Dr. Brant testified that tinnitus is a common and well-established consequence of a concussive head injury, whiplash, otologic trauma, or a general head injury. There is currently no curative treatment for tinnitus.

[295] Dr. Brant testified that it is also common for those who suffer from tinnitus for their hearing to be essentially normal but affected to varying degrees depending how loud the tinnitus is on any given day.

[296] Dr. Brant testified that tinnitus is widely recognized as an independent source of depression and poor concentration. There is an increased rate among tinnitus sufferers of anxiety, depression, and sleep disorders. It leads to a reduced quality of life, caused by fear, constant awareness, annoyance, inability to concentrate and a loss of quiet. It results in feelings of deficiency due to a loss of control.

[297] Dr. Brant noted that Anthony did not have any visible retraction or scarring of the tympanic membrane.

[298] Dr. Brant reviewed the audiograms done between December 2009 and August 2014. He said Anthony has a fluctuating right side mild hearing loss that goes to a borderline hearing loss. Anthony’s left ear is normal. He explained that there is consistent disruption to the right side, but it varies from audiogram to audiogram. However, overall, there is consistency of sensorineural hearing loss of some level. In his opinion, Anthony suffered a stable chronic long term hearing loss that will not meaningfully change.

[299] Dr. Brant noted no contributing history other than a strong history of anxiety. He made two diagnoses of Anthony’s hearing issues. The first was a borderline right-sided low frequency sensorineural hearing loss. The second was of bilateral tinnitus, the right ear being worse than the left. It is his opinion that Anthony’s tinnitus is permanent with no chance of spontaneous improvement and that even though he may not have an objective hearing loss, his practical ability to hear has been affected by the tinnitus because he tries to hear over the tinnitus.

[300] Dr. Brant acknowledged that without a completely normal audiogram before November 23, 2009, he cannot definitively say that the mild hearing loss was caused by the November 23, 2009, incident. However, his opinion is that the incident on November 23, 2009, likely resulted in a cochlear concussion, which is an injury to the cochlea itself. The tinnitus is secondary to the cochlear concussion. His opinion is based on the absence of any reported preceding symptoms of tinnitus, that immediately following the November 23, 2009, incident Anthony reported the onset of intermittent tinnitus which subsequently became constant, and on what Dr. Brant deemed to be the absence of a substantial mechanism of injury prior to the incident.

[301] It is Dr. Brant’s opinion that the injury suffered by Anthony on November 23, 2009, was sufficiently severe to give rise to what now appears to be a permanent injury to his inner ear that has manifested itself as tinnitus. In Dr. Brant’s opinion, the number of times that Anthony may have suffered a brain injury is of minimal consequence. Dr. Brant says that tinnitus is a common finding following an injury to the head, not necessarily a concussion.

[302] Dr. Brant suggested the use of masking (including the use of masking hearing aids and a masking pillow for sleep) and tinnitus retraining therapy which is a form of psychotherapy for individuals suffering from tinnitus to accommodate to their symptoms. Even with these interventions, given Anthony’s pre-existing anxiety disorder, Dr. Brant does not anticipate the tinnitus symptoms to meaningfully improve and they may become worse as Anthony ages. He believes Anthony’s baseline hearing will deteriorate and the competing sounds impacting on hearing will persist.

[303] Anthony testified that he had never heard about cognitive behavioral therapy and habituation therapy until the trial.

[304] In Dr. Brant’s opinion, Anthony’s tinnitus is not caused by eustachian tube disfunction. Dr. Brant described eustachian tube disfunction as a condition by which the middle ear has a problem ventilating itself. If the eustachian tube is blocked, air cannot enter or exit which results in difficulty moving the eardrum against that air. This results in a build-up of pressure in the middle ear space. Dr. Brant’s opinion is that eustachian tube disfunction would not cause a sensorineural hearing loss or inner ear hearing loss, it would cause a conductive, or middle ear hearing loss.

[305] Dr. Brant noted that many children suffer from eustachian tube disfunction of the middle ear space. It typically resolves as children grow. Where it does not, children who have chronic problems of the eustachian tubes with infections, fluid in the middle ear, or severe retracted tympanic membranes causing a hearing loss, can have surgery to address the issue.

[306] As support for his opinion that there were not ongoing problems with eustachian tubes, Dr. Brant referenced the February 2010 medical note that indicated Anthony went scuba diving. He testified that someone with eustachian tube disfunction cannot scuba dive and cannot descend under water without severe pain in their middle ear. However, Anthony denied that he was scuba diving in February 2010 as reported in the medical records. He said he would only have been snorkeling at the time.

[307] Dr. Brant disagreed with the assessment of Dr. Korman who saw Anthony on three separate occasions. Dr. Korman suggested eustachian tube disfunction as the cause for Anthony’s tinnitus symptoms. Dr. Korman did not testify.

[308] Dr. Brant says that since the date of injury, Anthony has consistently demonstrated audiograms with normal middle ear pressure. If Anthony had retracted eardrums, his audiograms would not have demonstrated such tympanograms throughout. With chronic eustachian tube disfunction affecting the middle ear, one would expect consistent, conductive, not sensorineural hearing loss. Anthony had only had one audiogram on December 28, 2009, where a conductive hearing loss was seen. All subsequent audiograms demonstrated an inner ear sensorineural hearing loss.

[309] Further, Dr. Brant says that Anthony had a normal CT scan of his temporal bones on December 22, 2009. If he had chronic eustachian tube disfunction, Dr. Brant expects the report would have commented on fluid in the middle ear or fluid within the mastoid bones. There were no such comments. Anthony also had a normal MRI on August 25, 2020, with no fluid in the middle ear space or mastoid cavity.

[310] When asked to provide his overall impressions, Dr. Brant exceeded the role of an expert, and in particular the scope for which he was qualified to give expert evidence at trial and became a trier of fact and at times an advocate. He gave his opinion on the violence experienced by Anthony, which incident was most severe, that its severity could not be contested, and whether Anthony suffered a head injury.

[311] Some of Dr. Brant’s evidence speculates on what might or should have happened, rather than what did happen. Dr. Brant testified to symptoms that Anthony would experience which Anthony did not testify to experiencing such as lethargy and inability to persist through a day.

[312] In cross-examination, Dr. Brant acknowledged that the November 2009 medical reports do not report symptoms or complaints consistent with tinnitus. He agreed there was no direct mention in the medical reports of any complaints or symptoms of tinnitus until January 3, 2012. Dr. Brant took the timing of the onset of tinnitus from Anthony’s report to him.

Dr. Mitchell

[313] The defendants called only one medical expert, Dr. Sara Mitchell. Dr. Mitchell was accepted as an expert in neurology. The defendants did not call an otolaryngologist. On consent, Dr. Mitchell’s April 20, 2020, Medicolegal File Review report and April 30, 2020, Medicolegal Addendum report were tendered as exhibits and in place of examination in-chief.

[314] Dr. Mitchell opined that based on the medical documentation she reviewed, Anthony sustained, at the most, one possible mild concussion on November 23, 2009, without significant sequelae. She agreed with Dr. Brant that tinnitus often coincides with other neuropsychiatric symptoms including changes in mood and cognition.

[315] Dr. Mitchell acknowledged she is not an expert in otolaryngology and defers to otolaryngologists for an opinion on any damage to Anthony’s inner ear function and causation. It is not part of her specialty to read tympanograms.

Conclusion on Causation of tinnitus

[316] Notwithstanding the issues with Dr. Brant’s testimony, on the evidence, including the evidence of Dr. Brant, Dr. Archibald, and Anthony’s evidence, I am satisfied that sometime following the incident of November 23, 2009, Anthony began to experience tinnitus which increased over time to become consistent. I am satisfied that the November 23, 2009, incident caused Anthony’s tinnitus and that his tinnitus was not caused by prior eustachian tube issues.

DAMAGES

General Damages

[317] The plaintiffs seek general damages of $185,000 for Anthony. The cases they have tendered for similar injuries have awarded damages between $75,000 and $100,000.

[318] The defendants have not offered any cases on quantum of general damages but submit that general damages should be reduced by Anthony’s contributory negligence.

[319] Anthony does not know if he had ongoing discomfort or swelling with his knee after the fall of 2009. He used to ski a lot. He tried to ski again in around 2016-17. He injured his knee that day. He had “some kind of fall” but did not recall the exact details. As a result, he stopped skiing. Anthony has been told that his patellar tendon is loose. He did not recall having any knee issues prior to the skiing incident. No damages are awarded for any injury to Anthony’s knee.

[320] Ms. Rizzuto testified that Anthony suffered from anxiety before the incidents. His anxiety issues began in grade 2 or 3. He received treatment which she says was completed before the 2009 school year began in September. He had developed coping strategies and was better.

[321] Anthony could not recall exactly when his anxiety started. He thought it was between the time he was three and eight years old. Anthony received therapy in 2008 and 2009. He does not recall how frequently he attended but had at least 10 sessions. He says it assisted his anxiety. He still had anxiety by the spring of 2009, but it was less intense. He learned coping strategies.

[322] Ms. Rizzuto testified that Anthony was experiencing anxiety before the commencement of the 2009 school year because he was to be separated from his best friend who had been in his classes since the beginning of his school career. This was addressed by Ms. Hamilton agreeing to place Anthony in the same class as his friend.

[323] Anthony testified that he recalled that he still had lingering anxiety and felt isolated and alone in his class and he believes he was accommodated by moving to one of his friend’s classes.

[324] I find that Anthony’s anxiety was a pre-existing issue and has continued and that it was not caused by the November 23, 2009, assault.

[325] Anthony testified that within a year of November 23, 2009, the intermittent ringing in his ear became more chronic and stayed with him. He did not describe how loud the sound felt to him in his head or how often he heard it.

[326] Anthony began to have difficulty sleeping because the ringing in his ears was “constant” and became 24/7 in high school. To sleep he began using a fan, opening his window, turning on the tv and sometimes adding a white noise machine. When he is stressed the buzzing in his ears gets worse and he is lucky to get three hours of sleep.

[327] The tinnitus affects Anthony socially because sometimes he cannot hear people and he must ask people to repeat themselves. When there is more noise in the background it is hard to isolate one person speaking. He testified that he had a small group of friends in high school but did not go to bars or proms or date girls because it was awkward for him to have to ask people to speak up or repeat themselves. He acknowledged it meant that people would just have to speak more loudly. He did have friends in university.

[328] Anthony found it difficult to describe whether he hears normally. While giving evidence, Anthony rarely asked counsel to repeat their questions because he could not hear.

[329] Anthony did not testify to some of the symptoms of tinnitus described by Drs. Archibald and Brant.

[330] Anthony testified that he began using a masker in grade 8. It played white noise or a hushing sound. It helped initially. Anthony no longer uses a masker. He meditates to try to mentally isolate the ringing in his ears. He has not pursued therapy to help him cope with the tinnitus.

[331] The evidence establishes that Anthony’s tinnitus is likely to be permanent and may get worse over time. He is young and has many years ahead of him dealing with the tinnitus. I fix general damages at $95,000.

Contributory Negligence

[332] The defendants say that Anthony was contributorily negligent. They rely on the decision of the Court of Appeal for Ontario in Bartosek v. Turret Realties, 2004 10051, 185 O.A.C. 90, where the court upheld the trial judge’s finding of 50 percent contributory negligence against a six-and-a-half-year-old who rode his bike into the path of an oncoming vehicle: Bartosek v. Turret Realties, [2001] O.J. No. 4735 (Ont. S.C.J.).

[333] The question to be determined is whether the child exercised the care to be expected from a child of like age, intelligence and experience.

[334] Anthony was purportedly a good student. There were no issues with comprehension. Anthony was aware he should not be playing tackle football. He knew they were hiding the playing of tackle football from the supervisors. According to his evidence, the play was rough and he had been injured several times. After the November 23, 2009, incident, he made sure he did not play with Justin and Kyle.

[335] In my view, being intentionally kicked in the head as occurred on November 23, 2009, is not a risk which, as a ten-year-old child, Anthony understood and voluntarily assumed. I find that Anthony was not contributorily negligent in the intentional assault perpetrated against him by Justin on November 23, 2009.

FLA Damages

[336] The defendants say that Ms. Rizzuto gave no evidence upon which the court could determine that she should be awarded damages pursuant to the Family Law Act, R.S.O. 1990, c. F.3 (“FLA”) and that Mr. Rizzuto did not testify and his claim for FLA damages should be dismissed.

[337] The plaintiffs seek FLA damages of $50,000 for Ms. Rizzuto and $25,000 for Mr. Rizzuto. The plaintiffs submit that:

a. Ms. Rizzuto and Mr. Rizzuto have spent the last 14 years attending to Anthony’s needs. His needs have taken precedence over everything else in their lives, including their other son’s needs. This was unfair to their other son, but they had no choice but to do whatever they could to manage Anthony’s symptoms.

b. Both Ms. Rizzuto and Mr. Rizzuto now suffer from insomnia because of the stress they have for their son. That stress, plus the rigors of navigating this legal action for so long, have affected their marriage. At the time in their lives when their children went to university, and parental responsibilities were normally reduced, they have only had increased worry about Anthony.

c. These issues have created restrictions on their family travel, created social restrictions because of Anthony’s discomfort with new people, and they have had to provide counselling and personal support well beyond what would be expected for a 24-year-old. They know that Anthony may live with them permanently. They will always have to be there for him especially if his anxiety and depression becomes more symptomatic.

[338] Mr. Rizzuto did not testify.

[339] There was no evidence tendered at trial with respect to almost all the assertions above. There was some limited evidence of issues in Anthony’s first year and that his parents had to provide some additional support and encouragement. Ms. Rizzuto testified that Anthony relies on his parents for support and reassurance on every decision he makes.

[340] Ms. Rizzuto testified that her physical and mental health in the last few years has not been great, but there was no evidence tying it to issues with Anthony.

[341] The evidence indicates that the Rizzuto family maintains a very close bond and may spend more time together than they otherwise might because of any issues that Anthony faces, and that Ms. Rizzuto is pleased about this. Ms. Rizzuto described their family relationship during Anthony’s last three years of university as wonderful and very close. She testified Anthony was a homebody and loved socializing with his family. She is glad to have him at home and supports him with “healthier eating”. She feels he has always been “heavy set” and “heavier”. She says her relationship with Anthony is “very close”.

[342] I find the evidence does not support a claim for FLA damages for Mr. Rizzuto.

[343] I would have awarded $2,500 in FLA damages to Ms. Rizzuto for loss of guidance, care and companionship.

Loss of Income

Anthony’s Education following the Incidents

[344] After his injury, Anthony had an Individual Education Plan (“IEP”) at school and some accommodations: he could sit at the front of the class, tennis balls could be put under his chair, and he was offered an FM system so that the teacher’s voice would be amplified in his ears. He chose not to use the FM system.

[345] Anthony attended Bishop Tonnos High School. His IEP continued in high school. The same accommodations were provided. He had ongoing difficulties with tinnitus and was having issues focusing and concentrating. He was given a hearing aid “masker” in about grade 8, but it was not helping. It was intended to assist him in tuning out the tinnitus. He used it for about three years and then switched to music on an iPod. He declined the FM system in high school.

[346] In high school Anthony was also given more time to write exams. He needed more time because when writing a test, he loses focus. He would be able to finish the tests but “could not give it 100%.” He agreed that he did not have to try hard in high school.

[347] Anthony acknowledged that he started to smoke marijuana in the summer after grade 10 (in 2015). He did not smoke every day but smoked more frequently when he got to grade 12 and closer to university. He smokes almost daily and consumes four to six grams per week. He acknowledges a dependency on cannabis and that it is not good. He has spoken to his doctor about it.

[348] Anthony did well at high school. He received a “red seal” in Health and Wellness.

[349] Anthony says that he wanted to be a medical doctor. He says he formed this goal in elementary school. Toward the end of high school, he began to think about an area of medicine in which he could succeed and settled on “medical doctor” rather than a surgeon or anesthesiologist that he was considering when he was younger. In grade 11, he met four or five times with an academic career counselor. As a result, he concluded that being a medical doctor was an unlikely scenario because he was told there would be no accommodations for writing the MCAT or for a medical residency. He began to think about other careers and considered becoming a medical physicist.

[350] Because of the coaching of his high school career counselor who believed that he was not likely to get into medical school, Anthony did not apply to health sciences programs. Anthony acknowledged that health sciences programs at universities are very competitive and require higher marks than he had.

[351] Anthony attended the University of Guelph for Food Sciences where he was given accommodations in first year such as a note-taker for classes, time and a half to write quizzes, tests and exams, and a special room in which to write them. He did not take advantage of the accommodations offered. His first-year average was 68%. As a result, he pursued the accommodations offered in his other years of university.

[352] Anthony lived in residence in first year with a shared kitchen and living space but separate bedrooms. He did this to accommodate his sleep issues but would still only sleep four to five hours.

[353] He took two courses during the summer of his first year to take fewer courses during the fall and winter semester.

[354] Anthony found the first year of university to be much more difficult than high school. He was required to work harder and study harder. He agreed that most people experience these same challenges in their first year. When he started university, he found it hard to stay at school and be independent. He went home every weekend and going back to school was difficult. He said he was overwhelmed by school, did not have much support, and he did not really want to study food science. Although he would never actually do it, he said he had suicidal thoughts sometimes and would cry a lot. He had two friends who made him feel better about things. His family and friends encouraged him, and he continued with his program.

[355] Anthony says he did not put 100 percent into university courses but felt that with accommodations he did a decent job. His marks improved in second year. Fourteen of the 20 students in his program graduated with a BSc in Food Science. He testified that his grade point average was 3.2 – about 80 percent.

[356] Anthony had two summer jobs in university. Both were related to meat product processing or inspection. They wore ear protection which makes his tinnitus more pronounced. They communicated with hand signals.

[357] After graduating from the University of Guelph, Anthony made inquiries about attending St. George’s Medical School in Grenada. He understood that his grades were sufficient to have a chance of admission, but he would have to take the MCAT as well as a further course in organic chemistry and that he was not guaranteed accommodation for his hearing issues. Anthony made no further inquiry about accommodations. He did not take the organic chemistry course or the MCAT.

Anthony’s employment

[358] Anthony currently has a one-year contract with the University of Guelph as a meat specialist which expires in June 2023. He assists with slaughter, processing, and sample collection of pigs, cows and lambs for research by PhD students. He earns $52,000 - $56,000 per year.

[359] In-chief Anthony testified there were 18 applicants for the job. Anthony was the second choice but ended up with the job. In cross-examination he could no longer remember how many applicants there were.

[360] He and his colleagues are required to wear ear protection at work, and they communicate by means of simple hand signals because of the noise of surrounding hydraulic systems. This assists him because he would not otherwise hear clearly. Wearing the ear plugs or muffs creates a quiet environment that makes the ringing in his ears more pronounced.

[361] Anthony conceded that he could expand his expertise in the industry he is now working in, but said he wants to get out of the meat industry.

David Cohen

[362] Mr. Cohen was qualified as an expert in vocational evaluation and transferable skills analysis. The major focus of his work is on vocational evaluation.

[363] Some of Mr. Cohen’s observations and evidence came from hearsay sources and were outside his area of expertise. For example, he testified as to a University of Illinois study he found as to the impact of tinnitus. He gave evidence as to the impact of tinnitus on Anthony. Mr. Cohen has no medical training. He also sought to testify as to the social and economic costs for society at large and for persons suffering from tinnitus. He used job search websites to obtain a range of salaries for doctors.

[364] At times it was evident that Mr. Cohen was speculating. For example, with respect to Anthony’s childhood issues with ear infections and surgeries, he guessed that youngsters often have that kind of problem. He speculated with respect to whether Anthony enjoyed his current employment.

[365] Mr. Cohen could not recall or locate in his notes how long it took Anthony to take the vocational tests. He did not ask Anthony if he was using a masker while meeting with him. He could not recall whether he reviewed Anthony’s medical records before or after he tested Anthony. Mr. Cohen testified that his history of Anthony’s issues was brief because Anthony did not want to go through the details again. However, when confronted with his own report, he admitted that what Anthony had told him was that Anthony’s “recollection of the above events had diminished given the length of time that had passed since he was injured”. Mr. Cohen said that Anthony told him his recall of events was somewhat unclear.

[366] Mr. Cohen reviewed the medical reports and met with Anthony. He calculated Anthony’s high school average as 86% and his university average as 75%. Mr. Cohen testified he was “fairly certain” had Anthony not had the injuries, he would have had a higher GPA and his motivation would have been higher because individuals are bolstered by success and that Anthony was successful notwithstanding his challenges.

[367] On November 16, 2020, Mr. Cohen had Anthony perform vocational testing that provided information about his strengths, abilities and interests. The testing was done virtually. It was Mr. Cohen’s view that Anthony made a genuine effort. The test results indicated he was a solid student operating in the upper average range of abilities and that he would have been able to pursue a course of learning as a doctor or medical physicist if he had chosen to do so and if the tinnitus had not become the problem it had become. It is not clear from Mr. Cohen’s evidence what “the upper average range of abilities” means or how it compares to the range of abilities required to get into medical school. Anthony demonstrated strengths in non-verbal spatial parameters. Based on the test results, Mr. Cohen says that Anthony could have handled medical school.

[368] In cross-examination Mr. Cohen acknowledged that he reported that:

Mr. Rizzuto's response consistency index was within the above normal range however, the Infrequency Index was considered too high. Thus, while Mr. Rizzuto answered most questions in a similar manner, his results cannot totally be relied upon given the infrequency score. Infrequency scores that are high suggest an irregular pattern of responses or responses that are unusual or out of character. Results are not considered to be prescriptive but rather a point of discussion to aid in the client's self-understanding and vocational decision-making and planning.

[369] Mr. Cohen said the “Infrequency Index” referred to the interest assessment part of the report. According to Mr. Cohen, Anthony’s interest testing reflected an interest in working in health and life sciences where he could give back to the community and provide a meaningful service. His identified interests included areas of health science and service, chiropractor, and physiotherapist.

[370] Mr. Cohen testified that in 2016 there were 40,000 to 45,000 applications to Canadian medical schools and only about 8,000 students were accepted. This would lead to rate of acceptance of between 17.7 and 20 percent. In cross-examination he testified that his research showed that 6,200 of about 40,000 applicants got into medical school, or 15.5 percent. He acknowledged it is a very competitive process.

[371] I did not find Mr. Cohen’s evidence particularly persuasive or credible. I do not place much weight on Mr. Cohen’s evidence with respect to vocational ability and ability to gain admittance to and succeed at medical school. I give no weight to his speculative evidence and matters outside his area of qualified expertise.

Ms. Greenwald’s calculation of loss of Income

[372] Stephanie Greenwald was qualified as an expert in accounting analysis for future loss of income. Her calculations did not include any past lost income. Ms. Greenwald compared Anthony’s potential income based on his current employment with two theoretical alternatives – a career as a physician general practitioner/family doctor or as a medical physicist. Ms. Greenwald assumed that either of those careers were available to Anthony. She also assumed that Anthony would continue to work in an occupation similar to his current employment. She recognized that given Anthony’s young age it is difficult to forecast his earning potential with certainty.

[373] Ms. Greenwald used a March 1, 2022, valuation date, a working start date of September 1, 2023, for a career as a medical physicist, and September 1, 2025, as a family doctor. The difference is to account for the length of additional educational training required to become a family doctor.

[374] Ms. Greenwald used the life expectancy of the general male population. A retirement age of 70 was used by Ms. Greenwald for all three careers. This is based in part on anecdotal information, Statistics Canada (“StatsCan”) data, an article in a medical journal which shows that doctors retire later as well as increasing life expectancy. Anthony gave no evidence about an anticipated retirement age.

[375] Ms. Greenwald did not include a credit of $5,600 for the income earned by Anthony in his current work between January 1, 2022, and the valuation date. Her calculation does include reduced income for two years of residency – a figure she estimated at $80,000 based on the experience of a family member years ago. Ms. Greenwald did not include loss of benefits as some physicians might not have benefits and benefits can vary.

[376] Ms. Greenwald used the discount rates of 0% for the first 15 years and 2.5% thereafter which were in use in 2022 rather than the current rates of 0.5% for the first 15 years and 2.5% thereafter. However, it is Ms. Greenwald’s view that this is offset by the inflation rate which is higher than that the rate she estimated and used in her calculations. She also used the mortality rates as a discount.

[377] Ms. Greenwald used the StatsCan data for average incomes for all three careers. Specifically, she used the data for the average of all full time and part time salaries which is lower than the average for full time salaries to offset and account for any periods of unemployment or lack of participation in the workforce for various reasons. Ms. Greenwald testified this was a more conservative approach. She used the averages for various ages and levels of experience to allow for an increase of income over time to 65 years of age and a reduced income after that based on the data.

[378] Ms. Greenwald calculates a loss of future income of $1,068,065 if Anthony pursued a career as a medical physicist and a loss of $2,206,754 if Anthony pursued a career as a family doctor.

[379] Subject to her assumption that Anthony would succeed in becoming either a medical physicist or a family doctor and subject to an adjustment to a retirement age of 65, I accept Ms. Greenwald’s evidence. I would have fixed loss of income at $1,000,000 for a career as a medical physicist and $2,050,000 for a career as a family doctor.

[380] The question is whether Anthony would have become either a medical physicist or a family doctor.

Conclusion on Loss of Income

[381] The applicable standard of proof for future loss of income is the “real and substantial possibility” standard, which has been applied in other cases involving loss occurring while the plaintiff was a minor: see e.g., C.O. v. Williams, 2020 ONSC 3874, at para. 179. As the Court of Appeal explained in MacLeod v. Marshall, 2019 ONCA 842, at paras. 17-18, the plaintiff must establish a “real and substantial possibility” that they would have attained a certain career and therefore lost the income that flowed from this:

In the case of a claim for economic loss following childhood sexual abuse, both past and future loss of income claims involve a consideration of hypothetical events because the child had not earned income prior to the assault. The jury must therefore determine not what did happen in the past but the chance that something would have happened, had the sexual abuse not happened in the past.

This requires a determination of loss of earning capacity, not the loss of actual earnings. Since the plaintiff is not required to prove hypothetical events on a balance of probabilities, the burden of proof for entitlement is that of real and substantial possibility. This is because we must now consider what kind of career the victim would have had, had he not been sexually abused. [Citations omitted.]

[382] In Lee v. Toronto District School Board, et al., 2013 ONSC 3085, another schoolyard bullying case, the court described the standard as follows: “[f]or future loss of income, the onus is on the plaintiff but the burden is somewhat relaxed; he must prove that there is a “substantial possibility” of the particular loss based upon expert or cogent evidence”: at para. 176, citing Schrump et al. v. Koot et al. (1977), 1977 1332 (ON CA), 18 O.R. (2d) 337 (C.A.); Meyer v. Bright (1993), 1993 3389 (ON CA), 15 O.R. (3d) 129 (C.A.) Gerula v. Flores (1995), 1995 1096 (ON CA), 83 O.A.C. 128 (C.A.).

[383] Anthony has not established a real and substantial possibility that he would have succeeded in becoming either a medical physicist or a family doctor. The evidence in support of such a finding is too speculative.

[384] According to Dr. Cohen’s testing, the interest assessment results of an interest in working in health and life sciences cannot totally be relied upon given Anthony’s infrequency score.

[385] The plaintiffs tendered no evidence of the requirements for a career as a medical physicist. They have tendered no evidence of the marks required, the education required, the qualifications required, of inquiries made, or of applications to admission attempted. I find that Anthony has not met the burden of establishing that he could have become a medical physicist or that he cannot now pursue that career.

[386] While no specific evidence was tendered, I find that the purpose of accommodations such as those provided to Anthony at school was to level the playing field. Indeed, it appears to have worked as Anthony’s marks in university improved substantially after first year.

[387] The evidence is that it is very difficult to get into undergraduate programs that lead to medical school and very difficult to get into medical school. Anthony did not apply to health sciences programs as his marks were not good enough. The plaintiffs tendered no evidence of any applications by Anthony to any medical schools.

[388] I find it difficult to conclude that Anthony would have had the required marks, aptitude, ability and drive to gain admittance to and succeed in medical school. By his own evidence, Anthony appears not to have given 100 percent effort to his university studies. He was a regular user of marijuana in university and admitted his dependency and that this was not good. Anthony also had pre-existing anxiety issues to contend with.

[389] No cogent evidence was led that accommodations were not available to write the MCAT or for residency. Anthony testified that based on his own research, which he did not describe, he concluded he could not get accommodation for writing the MCAT. Even if accommodations were available for the MCAT, Anthony felt he would not get accommodations for a medical residency. This seems to be based on what his career counsellor told him in grade 11.

[390] The evidence tendered is not sufficient to establish that there are no accommodations for writing the MCAT or for medical residency. The plaintiffs tendered no evidence that Anthony applied for accommodations for the MCAT. Anthony’s evidence was that accommodations were not guaranteed at St. George’s, not that they were not available. He made no further inquiries of St. George’s with respect to accommodations.

[391] I find that Anthony made no effort to pursue the possibility of medical school at St. George’s. He did not sign up for or take the organic chemistry course that St. George’s required before applying to medical school.

[392] Anthony said he did not pursue medical school because he did not want to invest four years of time and money and not be able to get through residency. He was not willing to waste that time for just a chance or a flip of the coin. Such a possibility is faced by many students who undertake programs of study at university and who ultimately are not able to pursue the career they desire. Anthony is no different.

[393] No other alternative careers were suggested that Anthony could have but did not obtain.

[394] Accordingly, I find that Anthony has not established any future loss of income.

[395] However, I find that there has been some impact on Anthony’s competitive advantage.

[396] There is no evidence of any impact of the tinnitus on Anthony’s job performance or attendance. Anthony is young and will have opportunities to advance his career. However, I find that the tinnitus impacts Anthony’s ability to hear in certain job environments and may limit certain jobs he can take on or for which employers would hire him.

[397] I find that because of his tinnitus there is some likelihood that Anthony has lost the ability to take advantage of all job opportunities which might otherwise have been open to him, is less capable of earning income from all types of employment for which he would otherwise have been suited and is less capable of earning income in a competitive labour market.

[398] I fix damages for loss of competitive advantage in the amount of $160,000.

Special Damages

[399] No evidence was led by the plaintiffs of any special damages or future care costs.

[400] The plaintiffs seek $7,507.54 for an OHIP subrogated claim. However, no evidence of the subrogated OHIP claim was put before the court.

[401] No special damages are established.

Conclusion

[402] For the reasons outlined herein, the claim against the defendants Ms. Hamilton, Mr. Vandenbosch and the Board is dismissed.

[403] If the parties cannot agree on costs, they may submit a bill of costs and make written submissions consisting of not more than four double-spaced pages in length, together with any offers to settle and excerpts of any legal authorities referenced, according to the following timetable:

a. The defendants shall serve their bill of costs and submissions, if any, by no later than August 25, 2023.

b. The plaintiffs shall serve their bill of costs and submissions, if any, by no later than September 18, 2023.

[404] All submissions are to be filed with the court, with a copy also provided to the judicial assistants at: St.Catharines.SCJJA@ontario.ca, by end of day on September 18, 2023.

[405] If no submissions or written consent to a reasonable extension are received by the court by September 18, 2023, the matter of costs will be deemed to have been settled.

___________________________

M. Bordin, J.

Released: July 7, 2023